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Hemingway, J.
This is a suit by the widow and heirs at law of one Bob Robertson, against Brass Robertson, his brother, to establish a trust in a tract of land.
The material facts of the case are as follows : In 1871 or 1872 one Thomas Trotter sold the land to Bob Robertson, on .•a credit, for $660, giving his title bond and taking notes for the purchase money, bearing interest until paid at 10 per cent, per annum. Bob Robertson entered into possession and occupied the land as a homestead, Brass, who was younger, liv:.ing with him. Bob paid $160 on the notes. In 1874 he fled the country, leaving his wife, children and brother in possession of the land. In 1875, after the last of the purchase money notes had matured, Trotter notified Brass that unless they were paid, he would proceed against the land. Brass procured the title bond from Bob’s wife, and returned it to Trotter, who, intending to cancel the sale, destroyed it and the notes. The payment made by Bob liquidated the interest, but did not reduce the principal of his debt. Brass and Bob’s family remained upon the land during 1875 as tenants of Trotter. About the close of that year Trotter sold the land to Brass. He paid part of the price in cash, and gave his notes for the balance; he received a bond for title. He subsequently paid the notes. It does not appear from the evidence that Brass acted otherwise than in good faith, either in attempting to cancel the bond to Bob, or to acquire title to himself. When he purchased there was due on Bob’s notes $660; and there were twenty acres of the land in cultivation of the rental value of three dollars per acre per annum. The land is not shown to have had any other rental value. Brass subsequently cleared more of the-land and made other improvements; he asks that he be paid therefor 'in case his title fails.
The court below found that Brass had received assets from Bob to apply on his notes, which, with the rents received by him, was sufficient to extinguish them. As to such assets the testimony is very indefinite and unsatisfactory, and we cannot find that any were received by Brass for that purpose.
The effect of the title bond to Bob, was to vest in him an equitable title to the land, and to retain in Trotter the legal title as security for the purchase money. The return of the bond to Trotter was made without Bob’s knowledge or consent ; such being the case, Trotter did not acquire Bob’s title by its delivery to him and the destruction of the notes. When Brass took possession under his purchase, he held not as owner but as mortgagee, being subrogated to Trotter’s right as such. Teaver et al. v. Eakin, 147 Ark., 528.
A mortgagee is not entitled to be paid for improvements-made upon the mortgaged premises, further than is necessary to keep them in repair. The improvements may be of permanent benefit to the estate, but unless made with the consent and approbation of the owner no allowance can be made for them. The mortgagee has no right to increase the burden of redeeming. If he chooses to make improvements, he may enjoy their use during his possession, but upon redemption they inure to the benefit of the estate. Jones on Mort., sec. 1127.
A mortgagee who himself occupies the premises, especially if they consist of a farm, upon which money and labor must be bestowed to produce annual crops, is chargeable with such sums as are a fair rent of the premises (Jones on Mort., sec. 1122); but he should not be charged an increased rent, caused by improvements upon the land for which he is denied compensation. Justice is done by charging him with the rent which the land would have yielded as it was without his improvements. To the extent that the rental value is increased by them, he should not be held to account. Jones, McDowrell & Co. v. Fletcher, 42 Ark., 456; Tatum v. McClellan, 56 Miss., 352; Jones on Mort., sec. 1127, and cases cited.
The question of limitation was not raised by the pleadings of appellant nor considered by us.
The appellees are entitled to redeem the lands upon paying to appellant the amount due on Bob’s notes. He should be credited by the sum of $660, the amount due on the notes when he purchased, less $60, the rent for 1875, with interest from January 1, 1876, at 10 per cent, per annum; but he should be charged with the sum of $60 for the rent of the land for each year beginning with 1876, which should be credited at the end of each year on the amount due him. If the appellees pay the sum so due him, they are entitled to have the title vested in them; if they fail to pay it within a reasonable time, the land should be sold to satisfy it.
The judgment is reversed, and the cause remanded for a decree and proceedings thereunder, in accordance with the law as herein declared. | [
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Cockrill, C. J.
The complaint in this cause was filed for the purpose of effecting a redemption of the lands described therein from tax sales. It alleged that the plaintiffs, Julia and Adelia Bender, Sallie Morris and Maggie Vanlandingham, together with Walter and David Bender and Agnes Douglas, were tenants in common and owners of the lands when they were forfeited for the non-payment of taxes ; that the four-first named were the minor children and heirs of Samuel Bender, deceased, who died seized of the lands, and that the others were the heirs-at-law of Agnes Douglas, who was daughter to Samuel Bender and who died after the forfeitures that each of the defendants, Bean, Helms and Haynes held part of the lands by virtue of donation deeds from the State, executed in pursuance of forfeitures for the non-payment of taxes ; that they had made a tender to each of the amount required by law to redeem, and that the tenders had been refused.
The prayer was for an account of rents and for the enforcement of their right to redeem. Haynes and Helms filed a joint answer admitting that they held under donation deeds, but denying that the plaintiffs were ever the owners of the lands, and alleged that they had paid taxes and put valuable-improvements upon them.
Bean denied that he held under a tax deed; admitted that the lands in question had once belonged to Samuel Bender,, the plaintiff’s ancestor, and that he had died seized and possessed thereof, but alleged that the administrator of his estate,, acting under authority of the Probate Court of his appointment, conveyed the same to one David Bender before the forfeiture mentioned in the complaint, and that he had succeeded to David Bender’s title through certain mesne conveyances ; he pleaded the seven-year statute of limitations; alleged that the tax titles of Haynes and Helms were irregular and void ; ■made his answer a cross-complaint against them and the plaintiffs aud prayed that his title be quieted against the claims of title of all the parties.
Proof was taken and the court heard the cause without objection from any source as to multifariousness or misjoinder of parties, and decreed that Bean had no title except as against the Douglass heirs; that the minor children of Samuel Bender were entitled to recover four-sevenths of the lands which he held; that they were entitled to redeem the same proportion of the lands held by Haynes and Plelms, on paying the excess of the amount of taxes paid, and the value of improvements made by the tax-purchasei's over the value of the rents enjoyed by them, and dismissed the complaint as to the heirs of Agnes Douglass. The plaintiffs appealed, and -afterwards cross-appeals were allowed here in favor of each of the other parties.
Bean argues that he succeeded to the title of Samuel Ben■der, by virtue of the administrator’s deed, and that the decree granting the plaintiffs relief against him is wrong for that reason. Haynes and Helms also argue that the administratox-’s deed divested the title of the plaintiffs before the foi'feiture, -and left them without interest to redeem ; and say if they are •mistaken in that, that the court erred in refusing to allow them ■credit for the full amount of their tax expenses and the value •of the improvements, without diminution for rents enjoyed .by them.
The successful plaintiffs complain because they are required to pay for any part of the improvements, and the other plaintiffs appeal because no relief was granted them.
The facts in relation to the execution of the deed by Bender’s administratior, are as follows. In i860 Samuel Bender purchased the lands in dispute from David Bender, who, as all the parties admit, was then the owner in fee, making a cash payment and giving his notes for $2000 for the deferred payments ®f the purchase money. A lien was retained in the deed as se curity for the payment of the unpaid purchase money. Samuel Bender died in January, 1869. In March of the same year, Walter Bender was appointed administrator of his estate, and' in August, 1871, presented his petition to the Probate Court, of his appointment, alleging that the notes for the purchase-money were unpaid, and that the lands were worth less than the principal and interest due on them; that the estate was insolvent, and that he was unable to discharge the notes if" it was to the interest of the estate to do so; and prayed that authority be granted him to relinquish to David Bender all the interest of the estate in the lands, upon condition that he would surrender the purchase money notes to the petitioner.
The order of the Probate Court in this connection is as-follows : “Upon examination it is considered and ordered by the court that the prayer of said petition be granted, and, he (the administrator) is hereby authorized to make said relinquishment.”
The records of the administration of the estate of Samuel Bender were put in evidence, and it nowhere appears that the claim of David Bender against the estate of Samuel, was ever allowed by the court or presented to the administrator. In June, 1872, the accounts of Bender’s administrator were examined and approved, and the administrator was discharged. In October, 1874, a deed of relinquishment was executed by Walter Bender, purporting to act as administrator of the estate of Samuel Bender, deceased, to David Bender, to carry out the order of August, 1871, in reference to the settlement of the purchase-money notes. The deed was acknowledged by Walter Bender before the Probate Court, and was spread at. large upon the record ; no order in reference to the matter - was made by the Court. David Bender appeared at the time ■ the deed was acknowledged, and surrendered the "purchase-money notes. No other action was had in the matter of the ■ estate after the discharge of Walter Bender as administrator in,. 1873. The lands were assessed for taxation in the name of David Bender after 1874. He conveyed them to one Allen, and Allen to the defendant, Bean. Bean and those through whom he claimed title, had been in the adverse possession for more than seven years when the suit was instituted.
Such is Bean’s title. The order of the Probate Court, of August, 1871, was evidently made in pursuance of the supposed authority of the fourth section, of chapter 3, of the so-called “Chapters of the Digest,” which was to the effect that where lands of a decedent had not been paid for, the court might, if it believed it advantageous to the estate, “order the same to be relinquished” to the vendor on the most advantageous terms that could be agreed upon. But the “Chapters of the Digest ” did not receive legislative sanction in legal form and the provision referred never became a law. Vincent v. Knox, 27 Ark., 267.
In 1873 the Legislature enacted that all sales previously made in pursuance of the “Chapters of the Digest” should be binding {Acts of 1873, p. 13), but this act could add nothing to the validity of the order.of August, 1871, because it was not in itself a sale, but purported only to confer authority upon the administrator to sell, and the power had not been executed when the healing act was passed. If the order rested upon the supposed authority of the “Chapters o.f the Digest,” it was a nullity, and no rights could be acquired under it.
But it is argued that under the act of March 16, 1871, which was in force when the order was made, the Probate Court was clothed with all necessary jurisdiction at law and in equity, to do what was necessary to close up the administration of estates (Acts of 1871, p. 18), and that being a superior court and having jurisdiction of the subject matter, the order is valid. But the order does not profess to divest the title of the estate and vest it in David Bender, as counsel argue. And, if it be admitted that the Probate Court had authority to do that, it could not have been effected upon the ex patte petition of the adminis trator. The order was not binding on David Bender. His assent to the condition upon which the conveyance was to be made, that is, the surrender of the notes which he held, was necessary to give it effect. But his assent was not obtained, and no effort was made to execute the order until the administrator had been shorn of his authority to act by the court’s order of removal. What he did after removal was no more than the act of a stranger. The administration had ceased, the heirs had the right to the possession of the land (Stewart v. Smiley, 46 Ark., 373), and the court had lost its jurisdiction over it. An order confirming the execution of the previous power to sell under such circumstances could not have breathed life into the deed. It would have’been an ex parte judgment with no party in interest before the court, and no cause pending. See Phelps v. Buck, 40 Ark., 219; Sumner v. Howard, 33 ib., 490; Gwynn v. McCauley, 32 Ark., 97. There was no error in declaring Bean’s claim of title without foundation.
The plaintiffs who recovered against Bean were minors when their cause of action accrued, and when the suit was brought, and the statute of limitations did not operate as a bar against them. But the minority of the heirs of Agnes Douglass is no protection to them, because the statute was set in motion in the lifetime of their mother. It follows that the plaintiffs in whose favor the decree was rendered were owners of the land when they were forfeited to the State for the non-payment of taxes, and as they were within the age when their suit was begun, their right to redeem was intact and could be enforced in equity. Carroll v. Johnson, 41 Ark., 59; Keith v. Freeman, 43 ib., 296. The questien is, what must an infant pay to redeem, or what is the tax-purchaser entitled to receive as the price of redemption ? The answer, so far at least as the purchaser is concerned, depends upon the law in force when the rights of the parties accrued. Railway v. Alexander, 49 Ark. 190.
One of the tax deeds is based upon a sale made in 1876, and the other in 1877. The lands were certified to the State Land Commissioner, and donation certificates were issued by him to the present claimants in 1879, and were followed by deeds in due course of time. The privilege of redemption was extended to minors by the revenue act of 1873 (Gantt's Dig., sec. 5197), and has remained unchanged. By the seventeenth section of the amendment to the revenue law enacted March 5, 1875, any person desiring to redeem lands sold, for non-payment of taxes could do so within the time limited by law, by paying “an amount of money equal to the taxes for which the land was sold, penalty and cost of advertising; and the taxes subsequently paid thereon by such purchaser, or those claiming under him, together with interest at the rate of ten per cent, per annum, on the whole amount so paid and the amount paid by the purchaser for the certificate of purchase, and the expenses of advertising.” Acts of 1875, p. 227.
While this section applies to redemption by minors (Keith v. Freeman, sup.), the reference to payment for a certificate of purchase without mentioning the deed shows that the Legislature had in view more particularly a redemption within two years from the sale and before a deed issued. Nothing is said therefore in this section about improvements. Butin section 186 of the same act (Gantt's Dig., sec. 5216), it was declared that no compensation should be allowed for improvements made within two years of the sale, but that for “improvements made after two years from the date of sale (such) proceedings shall (should) be had in relation thereto as shall be prescribed in any law existing at the time of such proceedings for the relief of occupying claimants of land.” This law was in force when the forfeitures were had. It was then, a condition upon which the right to redeem was granted to the minors, that the Legislature might regulate the compensation to be paid by them for improvements thereafter placed on their land by the tax-purchaser. The amount of the taxes, penalties, and the rate of interest the purchaser was to receive were unalterably fixed by the terms of the implied contract made at the date of his purchase. These are regulated as we have seen by the act of 1875 above quoted. The law for the relief of occupying tax claimants of land in force when the suit was instituted, was the 155th section of the revenue act of 1883 (Mansf. Dig., sec. 5792), which provides that they shall be allowed the full cash value for improvements made after two years from the date of sale. The law was passed subsequent to the “betterment act” and gives to the claimant the right to compensation without the showing of belief in the integrity of his title, which is demanded by the latter act. Being the last expression of the Legislative will and applicable especially to tax claimants it prevails in this suit. The court followed the correct rule in allowing the tax-purchasers the value of the improvements made by them.
But upon what principle can they be charged with the value of the rents? Upon the execution of the tax deeds they became the owners of the lands. Craig v. Flanagin, 21 Ark. 319. The minor’s right to redeem is not an estate in the lands, but only a statutory privilege to defeat the purchaser’s title within a limited time. That was the effect of the ruling in Craig v. Flanagin, sup., where the right to redeem by a non-resident — a privilege granted by a previous law — was considered. The right is analogous to a condition subsequent attached to an estate, and it was only by virtue of the statutory recognition of the minor’s vendee that we were able to rule that the privilege was not strictly personal. Neil v. Rozier, 49 Ark., 551; Mansf. Dig., sec. 4272.
The plaintiff’s suit to redeem was an affirmance of the validity of the tax titles and an election to defeat them by complying with the law governing such cases. It is true allegations of irregularities in the tax proceedings were made in the complaint, but the proof does not sustain them.
The court erred, therefore, in charging Haynes and Helms with rents. As to them the decree will be reversed and the cause remanded with instructions to enter a decree in accordance with the opinion.
Otherwise the decree is affirmed.
SUPPLEMENTAL OPINION ON MOTION TO MODIFY DECREE AS TO RENTS.
Hemingway, J. Upon the hearing of this cause, we held that defendants Haynes and Helms were not chargeable with rents of land purchased by them at tax sale.
The plaintiffs, who prevailed, have filed a motion seeking to' modify the decree in this respect, and to charge Haynes and Helms with rents after they offered to redeem and made a tender of the sum necessary.
As we said upon the hearing of this cause, the minor’s right to redeem is a statutory privilege to defeat the purchaser’s title within a limited time. The purchaser holds an estate in fee, subject to be defeated by the exercise of the privilege. This the minor may do by making the payment prescribed by the statute, within the statutory period, to the' purchaser. Upon such payment, the fee of the purchaser is terminated, and the person redeeming becomes seized thereof with all rights pertaining thereto, including the right to rents.
A tender of the amount necessary to redeem is as effective as a payment thereof; and an offer, made in good faith, to redeem, which is refused, not because no tender, or an insufficient tender, is made, but because the right to redeem is denied, is equally effective.
Any other rule would make a profit for the purchaser, from his unlawful denial of a statutory right.
A tender of the exact amount necessary, under a statute which exacts payment for improvements, would in many cases be impracticable If the purchaser could decline it without making a showing as to the correct amount, and still enjoy the rents and profits of the land, redemption by minors would be difficult and tedious. In all cases where the rents and profits for a few years exceeded the cost of litigation, redemption would be allowed only at the end of vexatious suits. When the former owner, who is entitled, desires, and in good faith attempts, to redeem, the tax-purchaser should offer no obstacles to his doing so. If the sum offered is inadequate, the inadequacy should be objected to, and the correct amount indicated. It will not do to maintain silence as to objections, which if expressed, might be met, and afterwards assert them to the owner’s prejudice.
The plaintiffs made a tender before bringing the suit, but it was joined with a tender from another party who was not entitled to redeem. This was not a good tender.
In the bill filed, they set out their respective interests, and ask to be allowed to redeem as provided by law. This implied an offer to pay the amounts which the law allowed to each of the tax-purchasers. It was met by no objection to its terms, or to the fact that no money was actually tendered, but by a denial of the right to redeem and by the assertion of a title adverse to the plaintiffs. They desired to redeem and sought to terminate the estate of the tax-purchasers, which they had a right to do; the purchasers could not by their improper refusal of the privilege sought, extend the term of their estate, and continue to enjoy its rents and profits.
The decree will be modified, and Haynes and Helms will be charged with rents from the date of the institution of the suit. | [
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Per Curiam.
The mortgage offered in evidence sufficiently described the subject mortgaged (Johnson v. Grisard, 51 Ark., 410) and the parties named as mortgagees. Perciful v. Platt, 36 Ark., 456; Kellogg v. Olsen, 34 Minn., 103; Morse v. Carpenter, 19 Vt., 613; Sherry v. Gilmore, 58 Wisc., 332—3; Chicago Lumber Co. v. Ashworth, 26 Kan., 212; Newton v. McKay, 29 Mich., 1; Beaman v. Whitney, 20 Me., 413; Hoffman v. Porter, 2 Brock, 156; Murray v. Blackledge, 71 N. C., 492.
The court erred in refusing to admit the mortgage in evidence.
Reverse and remand for a new trial. | [
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Per Curiam.
The plaintiff’s title to the two bales of cotton replevied, was no greater than to the other bales of the same lot. The landlord’s lien was extinguished, as the court held, by the transfer of the cotton upon which the lien existed, but the title of the landlord to an undivided interest in the cotton, equal in value to the amount of the lien extinguished, became absolute by his purchase. As to the remaining interest, he was only a purchaser whose rights were subject, to the mortgage. But the mortgagee had not a superior title to any particular part of the lot of cotton, but at most was only an owner in common with the landlord.
Replevin cannot be resorted to as a means of partitioning property held in common. Hart v. Morton, 44 Ark., 447, and cases there cited. Ward v. Worthington, 33 ib., 830.
It was error therefore to allow the action to be maintained.
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Per Curiam.
The proffered testimony of the appellant to the effect that he had delivered to the defendant’s intestate a box of money to be deposited in his safe, was a “transaction” with the intestate, within the meaning of the proviso to sec. 2 of the schedule to the Constitution and inadmissible for that reason. The witness’ knowledge that the box was in the safe was not competent evidence because it was derived solely from the transaction between the parties.
The distinction contended for by the appellant’s counsel seems to be sustained by the case of Tisdale v. Maxwell, 58 Ala., 40, where a witness who was incompetent to prove the delivery of a horse to a person who had since died, was held to be competent to prove the fact of the possession of the horse subsequent to the delivery; but the facts of this case prevent the application of that rule for the reason stated, viz.: the knowledge of the witness to the effect that the box was in the safe was a part of the transaction with the deceased.
It may be admitted that the appellant was a competent witness to prove the contents of the box under the common law rule announced in U. S. v. Clark, 96 U. S., 37; but the testimony was incompetent until the foundation was laid by competent evidence tending to prove that the deceased had received the box and converted its contents. There, was no testimony offered outside of the incompetent testimony of the appellant, to prove these facts, and he was not, therefore, prejudiced by the exclusion of the testimony.
Affirm. | [
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Sandels, J.
These two actions were brought by appellee,, the one an action at law, with attachment; the other replevin. The first was for debt for goods purchased in the spring of 1886, by Richmond, a merchant. The second was to recover goods sold him on September 13, 1886. In both actions George Taylor & Co., and other creditors of Richmond, inter-pleaded, claiming the goods seized. In the first, the defendant, controverted the grounds of attachment stated by plaintiff, andi in the second'he gave bond to retain the property.
The evidence for plaintiff showed that he had sold goods; to Richmond, for which he was indebted to them, and that in-the summer of 1886, its agent and salesman called on Richmond to see about the debt; to inform him that rumors affecting his solvency were current, and to inquire after his true condition. He was assured that the debt would be paid at maturity,, and that Richmond’s condition was this: He owed $10,000, and had assets amounting to $30,000. This statement was: twice, after that time, repeated to said agent, the last time-being on September 13, 1886, when the last bill of goods was-sold That on Oetober 9, 1886, Richmond failed. On that day he executed the following instruments :
First — A mortgage on his entire stock of goods and store -furniture to George Taylor & Co., and twelve other creditors named.
Second — An assignment “ in pledge ”jof all notes, accounts and choses in action to the same parties, as further security for the same debts.
Third — A deed of trust, in the nature of a mortgage upon ■other personal property and some land, to C. C. Henderson, dor the benefit of said same creditors.
Fourth — A mortgage to J. E. Mallory on personal property 'to secure $850 due him.
Fifth — A mortgage to Barthold & Jennings, to secure $20,-■000 due them.
These instruments covered the entire property of Richmond. The first named was executed and filed for record at 11 o’clock p. m., October 9, 1886. Possession was immediately ¡given to Taylor for himself and other beneficiaries, and he on the same night delivered possession of all the goods and chattels to Wiley Hatley, who had been suggested and recommended to him before that by Richmond, Hatley, from that time, acted under direction and supervision of George Taylor; ■sold goods at private sale, and, on the orders of Taylor, paid money to himself and others of the mortgagees, and for expenses. The debts secured appear to have been past due. On the day of the execution of these several instrumentsj Richmond drew orders on George Taylor & Co. in favor of •each of his' creditors not named in the mortgages, for the amounts due them respectively; a copy of which is hereinafter given. These orders were mailed to various unsecured creditors, with letters from Richmond, explanatory of the situation. There was realized from the sale of goods, and property and collections, the sum of $10,016.94. Barthold & Jennings’ debt was about paid from sale of property; Mallory’s remained unsatisfied at the time of trial.
The mortgage first mentioned and covering the stock of goods is as follows: “ Know all men by these presents, that I, N. T. Richmond, for and in consideration of the sum of one dollar, to me in hand paid, and the premises hereinafter set forth, do hereby sell, transfer and deliver to George Taylor, doing business under' the firm name of George Taylor & Co., J. V. Collins, Mrs. Jane Shanks, Mandeville, Bowling & Taylor, Terry & Young, J. H. Wear, Boogher & Co., Baird & Bright, Sam Scott, Gauss Boot and Shoe Company, Charles Wingfield, George Yroyer, J. R. Harrell and A. E. Stainton, the following described property: All of my stock of general merchandise now in the storehouse occupied by me as a place of business in the Town of Prescott, Nevada County, Arkansas together with the store fixtures and furniture therein. To have and to hold to the said grantees, their heirs and assigns; yet this conveyance is upon condition that, whereas, I am indebted) to said Geerge Taylor & Co. in the sum of five thousand nine hundred and seventy-one dollars, (and to the other twelve in various sums, which are specifically mentioned in the instrument).
“Now, if I shall well and truly pay said sums as they fall due, this obligation to be void; otherwise to remain in full force. The said grantees are hereby authorized to take possession of said property immediately upon the execution of this conveyance, and to proceed to sell the same in due course of trade at private sale for cash, for the space of ninety days, and shall apply the proceeds to the payment of said debts. If at the expiration of said period of ninety days said debts, or any part thereof, remain unpaid, the said grantees are to sell the remainder of said goods which may then be on hand, at public auction, in bulk or by the piece, as may be most advantageous, for cash, after ten days’ notice of the time and terms of the sale, by advertisement of in some newspaper published in the county, and the proceeds shall be applied, first, to the expenses attending the execution and carrying out of this con veyance, and the balance to the payment of said debts, secured hereby.
“ Witness my hand this the 9th day of October, 1886.
“N. T. Richmond.”
It was acknowledged and filed for record at 11 o’clock p.m. on that date.
The circular letter of Richmond to his unsecured creditors was as follows:
“Prescott, Ark., October 11, 1886.
“Mississippi Mills, Wesson, Miss.:
“Dear Sirs: On the 9th inst. I executed to Geo. Taylor & Co., of St. Louis, and others, a mortgage and deed in trust upon my entire property, to be sold at private sale, and closed out in ninety days. Everything now in hands of mortgagees, W. A. Hatley, Esq., manager. Assets about $30,000; liabilities about $15,000; good and ample to pay all, and leave a balance for me.
“ Enclosed order on G. T. & Co. to pay you amount due you before returning assets to myself.
" I regret the necessity, hit it protects all from complications.
“Yours truly,
“ N. T. Richmond.”
The order on Geo. Taylor & Co., enclosed in the letter, was in the following words:
“$385.37. Prescott, Ark., 10-9, 1886.
“ Out of the proceeds of the property this day mortgaged to you, after the indebtedness which said mortgages are given to secure directly are satisfied, you will please pay to Mississippi Mills $385.37, or should such surplus proceeds fail to pay in full the sum total for which I have this day made sundry similar orders, you will place on each order the pro rata share in such surplus.
“ N. T. Richmond.
“ To Geo. Taylor & Co., St. Louis, Mo!'
Richmond was employed by Taylor to assist Hatley.
Of the $10,000 notes and accounts $2000 was collected by Taylor and his agents. The balance were sold, and Taylor bought them for $100. He turned them over to Richmond for collection, and allowed Richmond to use the proceeds of collections.
Upon this state of facts the Circuit Court held, in the first case, that the various conveyances constituted an assignment for the benefit of creditors, and that the same was fraudulent and void, as being in violation of the statutes in that behalf. And, in the second case, the court found, in addition to the matter above, that at the time Richmond bought the goods in question, on September 13, 1886, he acted fraudulently, and without the intention of paying for the merchandise; that plaintiff had a right to repudiate the sale and sue for the goods. In each case judgment was given for plaintiff, and the defendant, upon these appeals, asks a review of these findings and judgments.
The statute of Arkansas respecting assignments undertakes to regulate the execution of the trust. Except that the deed must contain nothing directing a different execution, the statue has nothing to do with the contents of the deed. Preferences are allowed as at common law. Neither preferences, long since given, nor those recently made, by mortgage or otherwise, are invalidated by the subsequent execution of a deed of assignment. A preference may be by mortgage, by confession of judgment, by pledge, by deed of trust, in the nature of a mortgage, or by stipulation in the deed of assignment. Much confusion in analyzing the authorities arises from a failure to discriminate between the conditions which exist here and in some States where insolvent laws have been passed; and the conditions in such States vary inter se. Thus, in Missouri, since the statutes of 1864, it is held that a deed in trust to secure the debts of tiuo creditors is an assignment which will inure to the benefit of all the creditors of the debtor. Martin v. Hausman, 14 Fed. Rep., 160; Crow v. Beardsley, 68 Mo., 435. While, in Illinois and Wisconsin, under statutes varying slightly, it is held that the right to prefer a creditor still exists, and may Be exercised in any way except by assignment. White v. Catzhausen, 129 U. S., 329; Wiuner v. Hoyt, 66 Wis., 227. In Massachusetts, instruments similar in many respects to those under consideration in this case, are not within the prohibition of the statutes of assignments. Henshaw v. Sumner, 23 Pick., 446. It results that the decisions of many other courts are pur.suasive with us only in so far as they discuss the principles which determine the character of the instruments under consideration. The necessity in other States of considering statutory provisions to determine the nature of the instrument, makes the entire decision worthless here.
A deed of assignment contemplates the intervention and .agency of a trustee, though none need be named in the deed, Burrill on Assignment, sec. 3; Burrows v. Lehndorff, 8 Iowa, 96. Hence, conveyances directly to creditors, in payment or by way of security for their own debts solely, are not, generally, assignments for the benefit of creditors. Bouchand v. Dias, 1 N. Y., 201, 204; U. S. v. McLellan, 3 Sumner, 345. Nowhere is the essential character of an assignment (trust deed), as contrasted with that of a mortgage, better stated than by Mr. Justice Walker, in Turner v. Watkins, 31 Ark., 437. He says : “ The conclusion reached is that when the grantor parts with his title, giving it to the trustee absolutely, for the purpose of raising a fund to pay debts, this is, properly speaking, a deed of trust, but when a conveyance is to secure a debt, in case of •default, thus assimilating the transaction to a mortgage, and where the intent of the grantor, instead of parting with his •estate, is to retain it, in case he performs his obligation according to its terms, instruments of this class are also, but less technically, called deeds of trust, but in substance they are mortgages.” See, also, Huffman v. Mackall, 5 Ohio St, 124. An assignment, then, as Burrill says, is a transfer by a debtor, without compulsion of law, of some or all of his property to an assignee or assignees, in trust, to apply the same or the proceeds thereof to the payment of some or all of his debts, and to return the surplus, if any, to the debtor. A mortgage is a security against the default of a debtor in the payment of his debts. The true meaning and effect of an instrument determine its character, and ordinarily, but not necessarily, these are gathered from the language of the instrument. We say that the meaning of the instrument is ordinarily gathered from the language in which it is couched, because that is-usually the best evidence of the intention of the parties to it. But the parol evidence of facts collateral to those stated in the instrument, is admitted to show their full intention. It was formerly held that the grounds upon which parol evidence was admissible to show that a deed absolute on its face, was a mortgage, were fraud, accident, or mistake. Freeman v. Baldwin, 13 Ala., 246; Whitefield v. Coats, 6 JonesEq., 136. But the doctrine of our own court, as first stated in Johnson v. Clark, 5 Ark., 321, puts it upon the broad ground that the bill of salé, though absolute in form, was intended as a mortgage. Jones on Mortgages, secs. 285-323; Jones on Chattel Mortgages, sec. 23. The true character of an instrument, then, is not necessarily discernable on its face. A deed absolute in form, may be conditional and defeasible in fact, while an instrument with formal defeasance may be intended to be, and may operate as an unqualified conveyance. In Kohn v. Clement, 58 Iowa, 593, it is held that a mortgage or mortgages in form, may be intended to be and actually constitute an absolute deed of trust. In White v.. Cotzhausen, 129 U. S., 329, it is held that two mortgages and a. confessed judgment constituted an assignment, by reason of the: intention of the parties and the operation of the instruments. In Winner v. Hoyt, 66 Wisconsin, 227, six mortgages to six. different creditors were executed on the same day, with an agreement that Hoyt, one of the mortgagees, should take the-property and manage it for all the mortgagees, selling it off at once for cash, applying the proceeds to the debts. . The inten
iion of the parties, as gathered from the whole • transaction,, was held to determine its character (and as it was contemplated that the conveyances should operate to carry the property absolutely to the mortgagees, to raise a fund to pay debts, it constituted an assignment, with Hoyt as trustee). These and a multitude of other decisions emphasize the statement often made that the law will not be blinded by forms or names, but will look beyond to the stibstance of the transaction under consideration, and fix its character according to the intention of the parties. Jones, Chattel Mortg., sec. 24; Horne v. Puckett, 22 Texas, 201; Hopkins v. Thompson, 2 Porter (Ala.), 433.
We do not hold that the giving of one or more mortgages, the confession of judgments or other means adopted to give security or preference constitute necessarily or even ordinarily an assignment. But we do hold that where one or more instruments are executed by a debtor, in- whatsoever form, or by whatsoever name, with the intention of having them operate as an assignment, and with the intention of granting the property conveyed absolutely to the trustee to raise a fund to pay debts, the transaction constitutes an assignment.
Under these rules, what is the effect of the several transactions between Richmond and Taylor, on October 9, 1886? The 'debts were past due; no extension of time for payment before default is given; the conveyances embraced his entire property, depriving him of the means of making money; it is provided that the property shall be immediately sold at private sale for cash, and the proceeds applied to the debts, thus negativing the idea that Richmond expected to regain his property or expected to pay the debts otherwise than by sale of the security. It was agreed that Taylor should take charge for himself and the other twelve, and as Taylor lived in St. Louis, he and Richmond agreed on a man (Hatley) to do all those things which a trustee is required to do. That is further evidence of his intention to dispose absolutely of the property. Richmond, on the day of the execu tion of the several conveyances, drew orders on Geo. Taylor -& Co. in favor of each of his non-preferred creditors for the amounts due them respectively, and directed that the same .should be paid out of the surplus proceeds of the property, after first paying those whom he had named in the deeds. In nis letter to plaintiff, dated October n, 1886, enclosing this order, speaking of the conveyances just made, he says: “I regret the necessity, but it protects all from complications." There was ample evidence to establish the fact that it was the intention of the parties that the various instruments should operate as an absolute conveyance of the property, to raise a fund to pay debts; and that Taylor, either personally or by Wylie Hatley, should be the trustee for the execution of the trust. The orders drawn on Geo. Taylor & Co. ignored the other mortgagees. It was to the trustee that they were directed. He was expected to honor them.
The transactions between Richmond and Taylor on October 9, 1886, constituted a general assignment, and the provisions in the deeds requiring the execution of the trust in a manner prohibited by law, rendered it void as to the other creditors.
The Circuit Court found that the defendant had procured the goods replevined "by fraudulent misrepresentations, and declared the law to be that the plaintiff had a right to repudiate the contract of sale and sue for the goods. There was evidence to sustain the finding of fact, and the law was correctly stated.
The judgments are affirmed. | [
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Hemingway, J.
Upon an examination of the evidence, we-cannot find that the sale was made with intent, in fact, to hinder, delay or defraud the creditors of Collins & Evans. On the contrary, we think it was made by a son, unsuccessful in business ventures, to repay in part, loans from an indulgent father. The purpose that prompted it was commendable.
But did J. J. Evans have the authority to make the sale ?" Or was it a transaction from which the law implies fraud?
It appears by the recitals of the bill of sale, that the property in controversy belonged to a firm composed of J. J. Evans- and Marcus Collins; and J. J. Evans claimed to have bought only a two-third’s interest in the business. We therefore find that the property belonged to a firm of which he was a member. It was sold to satisfy a debt due to H. Evans for money loaned. A part of the loan was made to the firm and went to pay firm debts; but a part, and it would seem the greater part, was made to J. J. Evans to aid him in buying his interest in the business.
It is a general rule in commercial matters, that, with respect to all articles kept by a partnership to be sold, for the benefit of the concern, each partner has, in the course of trade, the right to dispose of any part or the whole. This authority is •general and implied from the relation, because it is necessary to the expeditious and successful prosecution of the business, but being founded upon this reason, it is subject to the condition, that it must be exercised in the course of the partnership business. The satisfaction of the individual liabilities of one partner is not within the scope of the partnership Í therefore, no partner has any authority, implied from the relation, to dispose of partnership effects to satisfy his individual indebtedness. This may be done by the consent of his co-partner, and such consent is sometimes implied from the past dealings between the partners. But consent, either express or implied, is necessary to authorize it. Parsons on Part., 202 — 13.
The sale was made by one partner without the knowledge or consent of his co-partner; it was made to satisfy an individual liability, and not in the course of business, and this was known to the purchaser.
Although no wrong was intended, the partnership effects were illegally delivered to the purchaser, to be by him disposed of for his own benefit. The effect was improperly to hinder'and delay the partnership creditors, and from this the law presumes fraud.
This case does not involve the-question of the right of one partner to dispose of the partnership effects and business, to satisfy or secure firm debts. That we have not felt called to consider or decide.
The plaintiffs were entitled to a decree canceling the bill of .sale, in order that they might sell the property for the satisfaction of their claims.
It does not appear that they caused the property to be impounded, but they are now entitled to have such of it sold as can be seized.
The judgment will be reversed and the cause remanded with directions to entera judgment in accordance with the law ■as herein announced. | [
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Cockrill, C. J.
The right of appeal is limited in general to final, judgments and does not extend to interlocutory orders. Batesville & Brinkley Ry., ex parte, 39 Ark., 82. The object of the limitation is to present the whole cause here for determination in a single appeal, and thus prevent the unnecessary expense and delay of repeated appeals. A judgment in equity is understood ordinarily to be interlocutory when inquiry as to matter of law or fact is directed preparatory to a final adjudication of the rights of the parties. Russell v. Beebe, 19 How., 283. But “where the decree decides the rights to the property in contest and directs it to be delivered up, directs it to be sold, and the complainant is entitled to have it carried into immediate execution, the decree must be regarded as final to that extent, although it may be necessary for a further decree to adjust the account between the parties.” Forgay v. Conrad, 6 How., 206; Thompson v. Dear, 7 Wall., 342. The appeal is allowed in such cases to prevent irreparable injury pending the suit. It is allowed also where a distinct and severable branch of the cause is finally determined, although the suit is not ended. State v. Shall, 23 Ark., 601; Dunn v. Nichol, 25 ib., 129. But the unnecessary splitting of causes by courts of chancery creates confusion and difficulty in practice and is condemned. Tucker v. Yell, 25 Ark., 431; Hicks v. Hogan, 36 ib., 298; Drake v. Thyng, 37 ib., 228; Forgay v. Conrad, 6 How., sup.
In this case while the decree takes the form of a final order in adjudicating the parties’ proportionate interests in the land, it is apparent that the court has not fully adjudicated that branch of the cause. The relative interests of the parties in the land has been ascertained and determined, but the cause is retained with a reference to a Master who is directed to report at a subsequent term, and the court is yet to determine, upon the coming in of the report, what amounts shall be charged as liens upon the several interests, and whether there shall be a sale of some of the interests to satisfy the same. The decree does not direct its execution, but looks to further judicial action before that event. The plaintiffs can suffer no injury by awaiting the termination of the litigation.
The first subdivision of section 1265 Mansfield’s Digest does not undertake to grant the right of appeal from an interlocutory order, but provides only what the law was without it, that such an order can be reviewed on appeal from the final judgment. The appeal is premature. Cases supra; Cohen v. Weiss, 44 Ark., 344; Ry. v. Simmons, 123 U. S., 52; Gray v. Palmer, 9 Cal., 632.
Appeal dismissed. | [
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Per Curiam.
The appellees, judgment creditors of one Bryant, brought this suit, seeking to cancel for fraud a conveyance of land from him to the appellant. The land constituted the homestead of the debtor when the conveyance was made. It was not subject to the lien of a judgment, or to sale under execution. Creditors could not be injured by the conveyance. The debtor may have executed the conveyance with a bad motive, but it deprived his creditors of no right, and was therefore not fraudulent. Bump's Fraud Con., p. 245; Wait Fraud Con., sec. 71; Cammack v. Lovett, 44 Ark., 180.
The judgment is reversed and cause remanded with instructions to dismiss the bill. | [
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Battle, J.
In April, 1886, J. J. Cook & Bro., grocers and merchants in the Town of Augusta, became insolvent. Several of their creditors brought suits and sued out orders of attachment against them. The claims sued on amounted to about $22,000. The property of Co,ok & Bro. was seized under these orders of attachment. This brought about a general conference and concert of action upon the part of their creditors. Many of them had an informal meeting in Augusta, and afterwards, on April 30, 1886, held a meeting in the City -of Memphis, when a contract or agreement was entered into by Cook & Bro., and their creditors, including all the creditors who had sued out orders of attachment and all others, except one or two to whom onl}- small amounts were due. This contract was reduced to writing and signed by the parties. By it Cook & Bro. transferred, assigned and conveyed all their property of every kind and description to Branch Martin and Thomas E. Erwin, in trust for’the benefit of all their creditors. It was thereby agreed that Martin and Erwin, upon giving bond, were to take charge of all their property, including real •estate, merchandise, notes, mortgages, book accounts, etc., that the attachments should be dismissed, and that payments should be made as follows, to wit: First, the expenses of the trust. Second, to Friedman Bros. Third, to Dillard & Coffin, .$7000. Fourth, to Eckerly, Stone &. Co., $1305. Fifth, the balance to all other creditors, including balance due to Dillard ■& Coffin, and Eckerly, Stone & Co., fro rata, and the balance, if any, to Cook & Bro. Friedman Bros, were preferred creditors to the full extent of their claim. Dillard & Coffin, and Eckerly, Stone & Co. were preferred only as to a part of their debts. These creditors were preferred because they were the first attaching creditors, and because, if they had enforced their attachments, all the assets of Cook & Bro. would have been exhausted, and nothing would have been left to pay other ■creditors. By this agreement a committee, consisting of John W. Dillard, L. C. Tyler and F. T. Ryan, creditors of Cook & Bro., were appointed. It was empowered to superintend and direct the execution of the trust, to regulate and direct the purchases and expenditures in connection with the same, and to fill vacancies in the trusteeship, if any occurred. Its action was to be subject to the approval or rejection of the creditors as a body, and consistent with the object and purposes of the trust. The trustees were empowered to continue the business of Cook & Bro.; and the subscribing creditors agreed to furnish them, through the committee, supplies to the amount of .$2500, or such other sums as they might find necessary to advance to the customers- of Cook & Bro., to enable them to ■make their crops, and thereby to pay what they owed, as well as for the supplies furnished. If the trust was not closed by tbe first of March, 1887, the trustees were directed to sell the .assets remaining on hand, or enough thereof to satisfy the trust, at private or public sale, as they should think best. This contract was signed by W. F. Taylor & Co., the attaching credi tors, and by other creditors to the number of about thirty, and was delivered to the trustees. The attaching creditors then discharged the property from the attachments, and delivered it to-Martin and Erwin. Afterwards W. F. Taylor & Co., the appellees, caused their signatures to be erased from the agreement, brought suit on their demand, and on the 19th day off August, 1886, obtained a judgment against Cook & Bro. for $645.12. They caused an execution to b.e issued on this judgment, and levied on one and a half lots and some corn, a part of the property of Cook & Bro., transferred and conveyed to-Martin and Erwin, and caused the Sheriff to advertise the same to be sold to satisfy their judgment. • Before the day off sale Martin and Erwin, claiming the property, in order to suspend the sale, executed with J. H. Campbell, as surety, a bond to the plaintiffs in the execution, to the effect that, if it shoulcL be adjudged that the property levied on, or any part of it, was. subject to the execution, they would pay to the plaintiffs the value of the property so subject, and 10 per cent, thereon, not exceeding the amount due on the execution, and 10 per cent-thereon, and it was approved. Thereupon Taylor & Co-brought this action. They alleged in their complaint that the conveyance to Martin and Erwin and contract signed by Cook-Si: Bro. and their creditors was and is illegal, fraudulent and. void as to them; first, because it does not specify any time within which creditors are to accept its provisions ; second, because the same provides that property therein conveyed is to-be administered and closed up under the supervision of the creditors through a committee; third, because it provides that, the business is to be carried on beyond the time allowed by the statute; fourth, because the same provides for the disposition of the assets at private sale; and fifth, because it provides that the surplus, if any, shall be paid to Cook & Bro.;. and asked that the transfer and conveyance made by Cook &. Bro. in the agreement with their creditors be set aside, and for judgment against Martin, Erwin, and Campbell on their bond,. for the full amount due on their jndgment. ■ And defendants', answered, and alleged substantially, the facts stated : that the-erasure of plaintiffs’ names was made without authority; that the contract between Cook & Bro. and their creditors was-made in good faith; and that plaintiffs are estopped from disputing its validity. On a hearing, the court, sitting as a jury,, found the facts as follows : “ The plaintiffs declined to participate in the meeting of the creditors and debtors at which the agreement was entered into, and refused to sign it. Subsequently, however, they were induced by the so-called managing or supervising committee, upon certain conditions, to sign, and did sign the paper. They consented to do so upon the direct condition and representation that one Estes, at a salary of $75 a month, should be substituted in place of Martin, who was objectionable to plaintiffs, and was to get a salary of $200 a month. This condition was not complied' with, and the chairman of said managers, on the part of the assenting creditors, on demand of plaintiffs, and without objection, immediately caused plaintiffs’ signature to the agreement to be erased therefrom. Plaintiffs had no other connection with the parties to this agreement, were never called on to contribute any part of the money the creditors were to advance to carry out its provisions, and their withdrawal from it seems to have been acquiesced in, particularly by the defendants. The erasure was made when the instrument was in the hands of the defendants, Martin and Erwin, and they in possession of the property, but before they had proceeded to dispose of it, and before the instrument had been filed for record. Neither Martin nor Erwin offered any objection to erasing the signature when it was done, or at any time thereafter ; neither did Cook & Bro., who were on the ground; nor the creditors,, who had knowledge of it. With a knowledge of these facts, the defendants, Martin and Erwin, proceeded to dispose of the assets of Cook & Bro., according to the terms of the instrument;” and among other things declared the law ta Be as follows: “The instrument of writing by which defendants set up a claim to the property on which the plaintiffs’ execution was levied is absolutely void as a deed of assign■ment for the benefit of creditors, nor is it valid as a deed •of trust or mortgage security. If the instrument has any ■validity in law it is merely as an agreement in writing between •debtor and creditors, by which the assets of the debtor were placed in the hands of a third party, to be disposed of under the supervision and direction of the creditors for their benefit. .It did not affect the rights of any creditor who was not a party to the agreement,” and “ conferred upon the assignees, in this •case, no right or title to the possession of the property and that “plaintiffs were not estopped from prosecuting their claim against Cook & Bro. to judgment, and levying executions on property in the possession of Martin and Erwin;” and that •“ parol evidence was admissible to explain the erasure;” and •rendered judgment in favor of the plaintiffs against the defendants for the full amount of the execution, and the defendants appealed to this court.
The instrument in question is a conveyance by Cook 8c 'Bro. of their property to trustees for the benefit of creditors, .and is also a contract between the subscribing parties thereto. "Martin and Erwin were the trustees. It provides that the ‘committee selected to supervise shall have the authority to fill -any vacancy which might occur in the places of the trustees. When it was first presented to the appellees they refused to ■sign it. Finally, at the instance of one or two members of the •committee, they signed it, with the understanding that T. H. Estes should be made trustee in the place of Martin. No change, however, was made in the instrument on account of their signature. Martin and Erwin still remained, as before, the trustees in the deed. The said members of the committee immediately, ascertained that one of the creditors would not ■consent to the removal of Martin, and so informed appellees. They at once demanded the erasure of their names, and the members of the committee, at whose instance they signed, without delay caused it to be done. They now insist that they are in no manner affected by the instrument, and that the property in controversy was liable to be seized to satisfy their execution.
The first inquiry which presents itself for our consideration is, did the instrument in question go into operation as to all who signed it? Appellees say that they signed it on condition that Estes should be made a trustee in the place of Martin; but there is no evidence to show that it was not to be delivered until the condition was performed. On the contrary, they wrote to a member of the firm of Cook & Bro. that they had signed it “upon condition that Mr. Martin goes over and receives the property under the instrument of writing, and turns it over to Mr. Estes.” After it was signed the creditors discharged the property thereby conveyed from the attachments, and both the instrument and the property were delivered to Martin and Erwin. They accepted the trust, and proceeded to comply with its terms. All the parties to the instrument, it appears, understood that it was to take effect and become operative as a conveyance in trust when it was signed by them and delivered to Martin and Erwin. Nothing is said in it as to its taking effect upon the happening of a future contingency. It purports to be a full and complete conveyance and contract. Upon delivery to the trustees it became obligatory, and went into immediate operation as to all who had signed it. To permit any of the parties to show by parol evidence that it was conditional, would be to allow them to thereby vary or add to the terms of a written contract, and to violate a fundamental rule of evidence. The evidence relied on by appellees to show that it was conditional as to them was a parol agreement between them and two of the supervisory committee, that Estes should made a trustee in place of Martin, and was clearly inadmissible. Scott v. State Bank, 9 Ark., 36; Chandler v. Chandler, 21 Ark., 98; Ward v. Leidis, 4 Pick., 520; Cocks v. Barker, 49 N. Y., 110; Lawton v. Sager, 11 Barb., 349; Mossman v. Holcher, 49 Mo., 87; Jones v. Shaw, 67 Mo., 667; Cincinnati, etc., R. Co. v. Stiff, 13 Ohio St., 235; Dawson v. Hull, 2 Mich., 390.
The next inquiry is, did the erasure of the names of the appellees affect the rights of the other subscribing creditors and the trustees to the property in controversy ? It has been held by this court that the destruction of a title deed by a grantee does not divest him of the title to the land thereby conveyed; and it is well settled that the alteration of such a deed does not affect the title. Mr. Greenleaf, in his work on evidence, says: “ If the grantee of land alters or destroys his title deed, yet his title to the land is not gone. It passed to him by the deed; the deed has performed its office as an instrument of conveyance, and its continued existence is not necessary to the continuance of title in the grantee; but the estate remains in him until it has passed to another by some mode of conveyance recognzied by the law. The same principle applies to contracts executed in regard to the acts done under them.” What is said of land is equally true of personal property. When the title to it passes it cannot be divested, ■except in some mode of transfer recognized by the law. 1 Greenleaf on Evidence (14th ed.), sec. 568; Strawn v. Norris, 21 Ark., 80; Talliferro v. Patton, 34 Ark., 503; Cunningham v. Williams, 42 Ark., 170; Davidson v. Cooper, 11 M. and W., 798; Chessman v. Whitesmore, 23 Pick., 231; Withers v. Atkinson, 1 Watts, 248; 2 Parsons on Contracts (3th ed.), 724; 2 Wharton on Contracts, sec. 704.
In this case debtors and creditors were, doubtless, of the ■opinion that the instrument in question would be invalid as to non-assenting creditors. Not until all the creditors, except one or two to whom the debts owing were very small, had signed, were the instrument and the property delivered. After the ■execution of the instrument the attaching creditors, believing -.that they were as well secured thereby as by their attachments, ■discharged the property from seizure and caused it to be delivered to the trustees. Nothing remained for Cook & Bro. and their subscribing creditors to do to complete the transfer and conveyance of the property when the erasure was made. 'The result was the property vested in Martin and Erwin in trust according to the terms of the instrument. Did the erasure impair their title ? It is said that the court found that it “was made when the instrument was in the hands of Martin and Erwin, and they in possession of the property, but before they had proceeded to dispose of it, and before the instrument had ■been filed for record;” and that neither Martin, Erwin, Cook & Bro., nor any of the creditors, who had knowledge of it, made any objection to the erasure when it was made, or at any time thereafter. This may be true, but it is also true that Cook & Bro., the trustees, and the subscribing creditors, except appellees, never consented to surrender the property conveyed by the instrument, or any part of it, or to release any hold upon it, on account of the erasure. On the contrary Martin and Erwin still claimed and held it in trust ánd proceeded to ■dispose of it according to the terms of the instrument. The consequence is, the title to it was not divested by the erasure •as to any of the parties who had signed. Surely appellees could not, so far as they were concerned, divest the trustees ■of title, or impair the same, by a stroke of the pen, against the will of the other parties. That is not a mode of transfer recognized by the law.
It is contended by appellees, that they were induced by the agreement, that Martin should be removed and Estes put in his place, to sign the instrument. Did the failure to carry this agreement into effect render the instrument fraudulent and void as to them ? It was entered into before the execution of the instrument, rested wholly in parol, and formed no part of the written contract; was of no effect; and was binding on no one. It vested no right; its violation was no legal wrong. No one had a right to rely on it. Consequently there was no fraud in the failure to carry it into execution. On the contrary the evidence shows that it was entered into in good faith by two members of the committee selected to supervise the execution of the trust; and that immediately after appellees signed the instrument they ascertained that one of the subscribers would not consent to the removal of Martin, and reported that fact to the appellees; and that upon the demand of appellees, one or both of them, without authority, caused the erasure of their signatures to be made. The failure to perform a promise made in good faith is no indication of fraud. Long v. Woodman, 58 Me., 49; Bigelow on Fraud, p. 483, sec. 4, and the cases cited.
There is another reason why appellees cannot attack the instrument in question for fraud. The parties to it had the right to make the agreement contained therein and bind themselves thereby. Appellees were contracting parties. One of the moving causes and considerations of the transfer and conveyances evidenced thereby was their written assent thereto. They have consequently concluded themselves from attacking it on the ground that it was executed to defraud creditors. Rapeller v. Stewart, 27 N. Y., 310; Horn v. Henriquez, 13 Wend., 243.
For the errors indicated the judgment of the Circuit Court is reversed, and this cause is remanded for a new trial. | [
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Per Curiam.
Attachment sales are, by the terms of the statute; subject to confirmation by the court. The contract of sale is not complete until the bid of the purchaser is accepted by the court, and until acceptance there cambe no enforcement of the contract by either party. The purchaser cannot, therefore, be compelled to comply with the terms of sale by payment of the purchase money, until his bid has been accepted by the court. Freeman on Ex., sec. 304; Bell v. Green, 38 Ark., 78; Greer v. Powell, 3 Met. (Ky.), 124.
There had been no confirmation in this case when the action to collect the purchase money was brought, and it was, therefore, premature.
If the plaintiff shall move a confirmation of the sale, the defendant can raise the other questions argued by him, in that proceeding. When the sale is confirmed the plaintiff can renew his action to recover the purchase money.
Affirm. | [
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Hemingway, J.
The appellants brought this action against the appellee for damages to ferry rights. The appellee demurred to the complaint, the demurrer was sustained, the •cause dismissed and this appeal taken.
Did the complaint allege facts that constitute a cause of action ? It alleges, in substance, that the appellants are the owners of an ancient ferry franchise, entitling it to transport passengers and property for hire from either bank of the Arkansas river to the other, at points along the river between the ■Quapaw line on the east, and the west boundary line of the ■City of Little Rock. That they, and Matilda J. Hanger, from .whom they inherited the franchise, had of right used, owned and enjoyed the ferry, in transporting persons and property for hire, for more than twenty years next before the injury complained of. That the defendant is a railroad corporation authorized to construct and operate a railway from a point in the City of Little Rock to a point on the opposite side of the river. That in January, 1885, it erected a bridge across the river, within the limits of their ferry right, upon which it constructed and opened a roadway for the crossing of persons and property. That against their will it had permitted persons and property to cross over the roadway of the bridge for hire when not transported in its cars, and thereby collected bills amounting to a large sum, which it had wholly converted. That it had thus diverted valuable traffic from their ferry. That this diversion of traffic had rendered the enjoyment and possession of their right, and the privilege itself valueless, whereas, they had previously received from it $5000 per annum.
They file with the complaint, as an exhibit, a transcript of the records of the Pulaski County Court, wherein it appears that on the 1st day of May, 1865, the said court granted to Peter Hanger, in right of his wife, Matilda J. Hanger, a license to keep a ferry within the limits described, for a term of twelve months.
It nowhere appears that a license was afterwards granted either to the appellants or their ancestors, authorizing either of them to keep the ferry. Ferry licenses are for a term of one year. Mans. Dig., sec. 3319.
No person can keep a ferry and collect tolls without a license. Mans. Dig., sec. 3311. This court in the case of Organ v. Railway Co., 31 Ark., 235, declared the law which is decisive of this cause. Judge Battle, delivering the opinion of the court, said : “ Appellants further insist that they have been damaged by appellees running a transfer boat across the river, and attempt to show that it sometimes transported persons across the river for pay. But there is no evidence that appellants or any of them ever had a license to keep a ferry. If they did not, they have no right to keep a ferry, so as to-charge a compensation for transporting persons or property over the river, and could not have been injured by the running of the transfer boat, and can claim nothing on that account.”
It does not appear that the plaintiffs, or those from whom they claim, ever had a license after the bridge was constructed. The license to Peter Hanger, if it appears upon demurrer that he obtained one, expired in 1866 ; it may be that none was subsequently granted. Bell v. Clegg, 25 Ark., 26.
It follows that the complaint does not state facts authorizing a recovery for damages resulting from a diversion of business, because it does not show that the appellants were authorized to receive tolls. No damage to the franchise is alleged to have been occasioned by building the bridge, but all is claimed on account of the use of it as a toll-bridge.
It is not alleged that the defendant collected tolls without lawful authority ; the appellants could not complain of losses sustained from lawful competition, and the complaint should have stated that its action was without authority.
It does not appear that they had any other riparian right in the land upon which the bridge rests, and therefore no cause of action is set out within the rule announced in the case of the L. R. & F. S. Ry. Co. v. McGehee, 41 Ark., 202.
The judgment is affirmed. | [
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Per Curiam :
The Legislature has prescribed the manner of warning hands to work upon the public highways. The warning may be given personally or by leaving a written notice at the usual place of abode of the person warned, in some conspicuous place.
Service cannot be had by leaving the notice with the wife of the person to be warned, because this manner of giving notice is not within the provisions of the statute. Barnett v. State, 35 Ark., 501; Bruce v. Arrington, 22 Ark., 362.
If the conversation of the overseer with the defendant is relied upon as notice it must appear to have occurred more than three days before the time fixed for the work.
There was evidence upon which a jury might find that the defendant was liable to road duty.
The instruction given by the court of its own motion as to the sufficiency of the notice was error, and for that the judgment is reversed and cause remanded for a new trial. | [
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Hemingway, J.
The defendant was indicted for murder in the second degree. He testified that he killed the deceased, and sought to excuse it, because it was done as he claimed, in self-defense. He was convicted of manslaughter.
It is assigned for error here, that the court erred; first, in admitting improper evidence; second, in declaring the law applicable to the right of self-defense.
During the morning of the homicide, the deceased, Wallace, the defendant, Dave Billings, William Billings and Ike Brown met at the residence of William Billings, where they all remained until the homicide occurred in the afternoon. The witness, Handright, visited the place during the day, but left before the homicide occurred. It appears that the conduct of the deceased and defendant towards each other during the day was rough and irritating, attended with violent and abusive language. The evidence of those who were present shows the deceased to have been the aggressor; this the State denied. The appellant was-in the house of his friends, and it may be that the witnesses were subject to a bias in his favor. The attitude of the parties toward each other during the day was material in determining the merits of the defense.
William Billings, who is a brother of the appellant, and saw the homicide committed, was produced as a witness in his behalf; he professes to detail the entire transaction from the meeting in the morning until the culmination in the afternoon. If his narrative be true, the conduct of the deceased was violent, abusive and aggressive. To discredit him, the State asked himjjupon cross-examination, if he did not tell Handright during bis visit that day, while the defendant and the deceased were out of the, house, “that Dave Billings and Ike Brown had been running over Wallace (the deceased)”, all day, and that he “(the witness), did not intend to stand it.” He answered that he might have said something like that, but that he did not remember. The State then proved by Handright that the witness had so told him. This evidence was introduced against the appellant’s objection, and its admission is now assigned as reversible error.
The State proved that a very short time after the burial of the deceased, his body was exhumed, and certain bruises found upon it, which were explained to the jury.
It produced, as a witness, the widow of the deceased, and she was permitted to detail the particulars of a difficulty between the parties about two and a half years prior to the killing, and a conversation of the appellant with her about two years before the killing. Her testimony was substantially, that at a picnic her husband and one Wilson had a fight; that a few moments after the fight her husband said to one Bostic that he had knocked his brother-in-law, meaning Bostic, down. That appellant, who heard the remark, ran up with a drawn knife, and said; “If it’s brothers-in-law you are after, I am here,”, coupled with curses and oaths, at the same time striking at him with the knife. As to the conversation, of the appellant with, her, she testified, that he wanted to buy her interest in their father’s estate. That she offered to.sell for .cash, which he could not pay; that she refused to sell on credit. That he then said'he would have the land or some man’s hide.
There is no proof of any other altercation between the parties during the interval of over two years; nor does it appear that their relations were unfriendly. The deceased went to the house where appellant was staying on the morning of the homicide, found him there, and remained until he was killed. The defendant had whisky and the deceased brought more; they drank together during the day, and it is probable that all were somewhat under its influence.
This is a sufficient outline of the evidence to an understanding of the questions we are called to consider.
Was it competent to prove by Handright what William Billings had told him?
The statute provides that a witness may be impeached by the party against whom he is produced, by showing that he has made statements different from his testimony. But in order to so impeach a witness, he must be asked if he has made the statement assumed, and the examination should indicate the time when and the person to whom it was made. Mansf Dig., 2902-3.
This is but a re-enactment of the common law. It has been proper at all times to discredit a witness by proof of contradictory statements as to a material matter ; but it could not be done until he had been cross-examined as to the supposed contradiction in such a manner as to direct his attention to the matter assumed. The rule which prescribes this condition rests on the principle of justice to the witness.
The tendency of the evidence is to impeach his veracity, and common justice demands that before his credit is attacked he should have an opportunity to declare whether he made such statements to the person indicated, and to explain what he said, and what he intended and meant in saying it.
When this opportunity has -been afforded him, justice can demand in his behalf nothing more, and the reason of the rule is satisfied. If he neither admits nor denies the statement, can it be proven?
The decisions of the English courts upon this question are conflicting. If the matter is irrelevant, the proof of contradictory statements is certainly inadmissible ; but if it is relevant, the weight of the English authorities favor their admission. Phill. on Ev., 2 vol. 96o.
This rule is sustained by American cases. Payne v. State, 60 Ala., 80; Dufresne and wife v. Weis, 46 Wis., 290.
The question has never been ruled by this court.
The statute does not place the right to impeach a witness by proof of contradictory statements, upon the condition of his denial. It requires his cross-examination upon the matter; nothing more. This is exacted in order that he may explain apparent contradictions and reconcile seeming conflicts and inconsistencies. If he cannot remember the fact, he is unable to do what the law affords him the opportunity to do. If he cannot remember the statement made, it is quite as probable that his recollection of the occurrence about which he testifies is inaccurate or incorrect. If contradiction properly affects the value of his testimony when he denies, it is difficult to see why it should not when he ignores the contradictory or inconsistent statements. The testimony is discredited because he affirms today what he denied yesterday; the legitimate effect of such contradiction cannot depend upon his power to remember it. If the defect in the memory is real, the proof of the contradiction apprises the jury of this infirmity of the witness ; if he has made a false statement under the pretense of not remembering, he should not escape contradiction and exposure. We think the evidence was properly"admitted.
Proof of the bruises on the body of the deceased tended to elucidate the disputed question as to who had been the aggressor in the difficulty during the day. It was competent,
Did the court err in admitting that part of the testimony of Mrs. Wallace, above stated ?
The conversation of appellant with her is ambiguous. It does not appear to whom he intended his threat to apply. It was too remote from the matter charged, both in circumstance and time, to afford any reasonable presumption or inference of connection between the two affairs.
The general rule is well established, in civil as well as in criminal cases, that evidence shall be confined to the issue. It seems that the necessity for the enforcement of the rule is stronger in criminal cases. The facts laid before the jury should consist exclusively of the transaction that forms the subject of the indictment, and matters relating thereto. To enlarge the scope of the investigation beyond this would subject the defendant to the dangers of surprise against which no foresight might prepare and no innocence defend. Under this rule it is generally improper to introduce evidence of other offenses ; but if facts bear upon the offense charged, they may be proven, although they disclose some other offense. The test of admissibility is the connection of the facts offered, with the subject charged. Such connection exists in a variety of cases, and in them it is often proper to prove one offense in a trial for another. The Supreme Court of Alabama has indicated several classes of cases in which this may be done, as follows: First, when necessary to prove the scienter or guilty knowledge which is an element of the offense charged ; second, when the offense charged and the offense proved are so connected that they form part of one transaction; third, when the act proved and the offense charged are similar, and the one tends to fix the intent in the other; fourth, when it is necessary to prove a motive for the offense charged, and there is an apparent relation or connection between it and the other acts proved; and'again when it tends to prove the identity of the offender or of an instrument used.
In the case of Dunn v. The State, 2 Ark., 229, this court approved the exception to the general rule; but it was there held that proof of a distinct crime could not be introduced until there was evidence showing some connection between the different transactions; or such circumstances as will warrant a presumption that the latter grew out of the former. In that event it was held that the circumstances of the former were admissible as tending to discover the quo animo of the latter occurrence.
In a later case it was held, that antecedent facts could be proven when they were capable of forming any reasonable presumption or inference in elucidation of the matters involved in the issue.
There are many cases in the reports of this' court in which this question has been considered, and evidence of other crimes admitted; but an examination will disclose that in each case the crime proven and that charged y^ere connected in some way clearly manifest. We think there is no case in which the interval of time was nearly so great as in this. Dunn v. The State, 2 Ark., 229; Austin v. State, 14 Ark., 555; Edmonds v. State, 34 Ark., 732; George v. State, 13 Ark., 236; Melton v. State, 43 Ark., 367; Ford v. State, 34 Ark., 650.
On the other hand, cases are to be found in our reports in which evidence of other crimes was held incompetent. Endailey v. State, 39 Ark., 278; Dove v. State, 37 ib., 261.
It is impossible to say how far back, as respects time, other crimes may be so connected as to be admissible.
When in view of all the facts in this cause, including lapse of time, and no recurring trouble, it does not appear that there is.a connection between the crime charged and the other affairs, or that they tend to prove some fact included in it, they cannot be proved.
The altercation proven in this case, seems to have arisen suddenly; there is no proof that it did not as quickly pass away. There is nothing in the circumstances attending it to show that it made any lasting impression on the defendant; or that he thereafter cherished any malice or resentment on account of it. If the evidence was competent, it was as tending to prove malice; there is no reasonable presumption or inference, that the two affairs were connected, or that the latter resulted from the former or from the motive prompting the former. As the parties had lived as neighbors for two and a half years, and no recurring evidences of ill feeling were proven, it is more reasonable to say that they had their origin in independent causes.
Regardless of relevancy, this evidence was of a nature damaging to the appellant.
It tended to show that he was a violent, turbulent and lawless man; from which the jury might unconsciously conclude, that the man who committed one would commit another crime. However natural this conclusion, evidence is not proper to establish it. It was competent, if at all, only to show malice; it cannot be said that there was a fair or reasonable inference that it had such tendency.
If it were of a character harmless though irrelevant, we should not reverse for it; but as it is obviously harmful, we cannot so treat it.
The instructions declared the law of self-defense as it has been construed by this court. Fitzpatrick v. State, 37 Ark., 254-5.
For the error indicated the judgment will be reversed and the cause remanded. | [
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Cockrill, C. J.
This was a suit by the appellee on school warrants, bearing date July 4, 1882 — more than five years before suit was instituted. The statute of limitations was interposed as a defense. The judgment was for the plaintiff, on the following special finding of facts which are embodied in the judgment, viz.: “ The court finds that the original warrants issued herein were issued by the board of directors on the 4th day of July, 1882; that afterwards they were destroyed by fire; that on the 30th day of May, 1884,” (within five years of the institution of suit) “said board of directors being legally in session, and the fact that the original warrants had been destroyed being made known to said board, it was by the proper ordinance of said board ordered that duplicates of said original warrants be issued to take the place of the original warrants as duplicates. That in pursuance of said ordinance, warrants were issued in favor of said plaintiff, dated on the 4th day of July,1882, with the word 'duplicate’ written across the face of each one in red ink.”
There is no bill of exceptions, and the only question is, does judgment for the plaintiff follow as a conclusion of law from the facts found? Smith v. Hollis, 46 Ark., 17.
We take the finding of the court as embodying the true interpretation of the resolution of the board of school directors, and look to it, together with the indorsement upon the warrants, for the explanation of what the board intended in reissuing them. The inference cannot be fairly drawn therefrom that it was the intention of the board to enter into an independent contract by way of renewal of the old debt. Such a presumption is repelled by the terms of the resolution authorizing and explaining the existence of the new issue of warrants, when it is declared that they shall take the place of the lost originals as duplicates thereof, as well as by the date, and indorsement of “duplicate” upon the face of each warrant. The meaning is that the new issue of warrants should stand as the evidence of the debt due the payee, just'as if issued at the same time and with the like effect as the old ones; for a duplicate has no effect other than that imported by the original. A duplicate is essentially the same as the original in its essence and operation.
In Benton v. Martin, 40 N. Y, 345, it was ruled that the proper construction of the word “duplicate,” written upon a draft which had been issued as a substitute for a lost one of similar import, was that it was made only to take the place of the lost original, and therefore created no new liability. The plaintiff in that case having been guilty of laches in not presenting the original, was not permitted to recover upon the duplicate.
If a debtor stipulate in writing that a demand made upon him is just; that he will take- no advantage of the fact that the evidence of the debt is lost, and as further assurance, , acknowledges that it was represented by his note of a given date and amount, but gives his creditor to understand that he will stand upon his legal rights, whatever they may be — that would not fix a new period for the, statute to start from, because the acknowledgment is narrowed by a qualification which rebuts the inference of an unconditional promise to pay. The legal effect of what the directors did in this case is no more than the hypothesis stated.
Moreover, when a new promise or an acknowledgment from which a promise is implied, is made, the new promise, and not the old debt, is the measure of the debtor’s liability. Shepard v. Thompson, 122 U. S., 239. If, therefore, the new issue,of warrants was an acknowledgment of the old debt, the express condition attached to it was that the liability should be just what the new promise itself imported — that is, that the debtor should be bound according to the legal import of the promise, and not otherwise.
The right to recover upon the duplicate warrants would therefore be barred.
The case of Paul v. Smith, 32 N. J. Law Rep., 13, is in point, and sustains the conclusion we have reached.
The action was upon a promissory note made in 1861, but antedated five years. Six years was the period of limitation; when suit was instituted, more than that time had elapsed from the date the note bore, but not that much from the actual date of execution. The maker of the note had declined to make a general acknowledgment of the old debt, which was evidenced by note and was about to be outlawed, but agreed to give the note in question, which the creditors accepted, surrendering the old note which would have been barred earlier than the one given in lieu of it. We quote the major part of the opinion. “A note may be antedated or post-dated, and in both cases is valid, if no statute exists to the contrary; and where the purposes of justice require it, the real date may be inquired into, and effect given to the instrument. Story on Promissory Notes, sec. ‡8. The note in question was due immediately after its delivery. It was not antedated by mistake or for any unlawful purpose, but to carry into effect the object of the parties. To alter the date, or to give it a legal effect different from that expressed on its face, is not required for the purposes of justice, but would be to make a new bargain for the parties, and thus to do injustice. 'The consideration was the debt originally due and the substance of the transaction disclosed by the evidence was that, ‘by giving a new note, dated about a year later than that originally made, the defendant promised to pay the debt, and remains liable to an action six years from the time the new note becomes due, but not longer.
The case thus comes within the established rule that the .acknowledgment of a debt, if accompanied by a promise to pay conditionally, is of no avail, unless the condition to which the promise is subjected by the defendant is complied with or the event has happened upon which the promise depends.” See, too, Sumner v. Sumner, 1 Met. (Mass.), 394.
Conceding, without deciding, that the board of-school directors had the authority to enter into a contract waiving the-operation of the statute, we conclude that the court erred in> holding they had done so.
Reverse the judgment and enter judgment here for the defendant upon the special finding. | [
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Hemingway, J.
This is an action by the appellees, as next of kin of N. H. York, to recover of the appellant, damages for an injury to him, resulting in his death.
The appellant had constructed a culvert in -one of its streets; after its construction a hole was made in its covering, into which the deceased stepped, thereby receiving the injury. It is conceded that the culvert was constructed with care and skill, but claimed that the appellant was negligent in not repairing it.
The appellant contends that the facts alleged constitute no cause of action against it, and relies upon the decision of this court in the case of Arkadelphia v. Windham, 49 Ark., 139, as conclusive of its contention.
The contention of the appellee is : First: That the facts of this case do not bring it within the rule announced in that decision. Second: That if this case comes within the rule controlling the case referred to, its holdings were erroneous, and it should be reconsidered and overruled. In the consideration of the questions presented, the court has been greatly aided by the labors of counsel upon either side, which we cheerfully commend for thoroughness of research, and clearness and accuracy in the analysis of adjudged cases.
In attempting to distinguish the facts of this case from those considered in the case referred to, it is contended that, as the injury complained of in this case resulted from a failure to repair a street fallen out of repair, while the injury complained of in that case was occasioned by a failure to put a street in good condition, the cases should be governed by different rules. This distinction is not sustained by the authorities upon which the court relied in that case, but is opposed to their reasoning.
That it is a duty owing by municipal corporations to the public, to make good streets and to repair defects in them as they occur, is plain. Mans. Dig., sec. 737. But an inspection of the statute discloses that the measure of the duty to repair a street fallen out of repair, is not greater than, but the same as the duty to put it in good condition originally. We have carefully examined the cases relied upon to maintain the disdinction. Most of them, we think, fail to do it; one was subsequently overruled by the learned Judge who delivered it, and another, in its reasoning antagonizes principles sustained by undoubted authority and approved by this court.
We cannot distinguish the cases.
The question then involved, is one upon which the earlier authorities agree in sustaining the views heretofore taken by this court. If later authorities sustain the contrary view, they have done no more than effect a division, and it cannot be claimed safely that the weight, as respects numbers or learning, is against the views first taken. The former decision of this court was made after a careful and exhaustive examination of adjudged cases. It would be unwise to reconsider the conclusion there reached, unless we were clearly satisfied that it was wrong in principle and mischievous in its operation. We do not reach that conclusion.
The judgment is reversed and the cause remanded for further proceeding according to law. | [
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Per Curiam.
The interplea is bad whether the original action against the railway was for the conversion of the mule, or for damages for injury done it. In the former case it should have alleged a satisfaction of the judgment recovered for the conversion (Cooley on Torts, 338), and in the latter event the interpleaders had no claim to the property at all.
Affirm. | [
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Per Curiam.
The authorities cited by the appellee are to . the effect that an action by a partner against his co-partner for injury done to the partnership property is cognizable in a court of law. None goes to the extent of holding that the matter is not cognizable in a court of equity, in an action of account for final settlement.
But even if the issue were not properly cognizable in equity, •can it be held that the judgment is void ? Under the code a plaintiff is only required to make a plain statement of his case in his complaint. If the case stated would formerly have been an action at law, either party is entitled to a trial by jury after the manner of the common law; but if the cause as stated would have been distinctly equitable under the old system, then it is triable according to the former chancery method. That is the substantial difference between law and equity under the new procedure. It does not recognize one judge as presiding over separate tribunals, the clash of whose jurisdictions confounds the practitioner and ruins the suitor. One court, endowed with the powers to try all causes, administers the whole law. For its convenience separate dockets are kept for the two classes of cases. If no objection is made to the form of trial — that "is, whether it shall be according to the common law or chancery practice — it is adjudged not to be error to try a common law case according to equity practice, or an equitable case according to the practice of the common law. Organ v. Ry., 51 Ark., 235. It follows that if objection is made, and the court applies the wrong form of trial to the case in hand, it commits only an error in the exercise of rigntful jurisdiction, because the power to determine the cause and the method by which it shall be tried, is devolved upon it. An erroneous judgment pronounced in such a case is not a nullity.
On the finding of the court, its judgment should have been for the appellant upon his plea of res adjudicata, and such judgment will be rendered here. | [
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Per Curiam.
An order for a change of venue in a civil case is made upon the condition that the Clerk’s fees shall be paid by the party in whose favor it is granted within fifteen days from granting the order. If a satisfactory arrangement is not made to pay the Clerk’s fees within that time the order becomes void, and the court making it retains jurisdiction of the cause. Haglin v. Rogers, 37 Ark., 491. It is incumbent upon the appellant, who relies upon the failure of the jurisdiction of the court in which the order is made, to show affirmatively the facts which deprive it of jurisdiction, and where the record shows only that an order for a change of venue was made, and thereafter a voluntary submission to trial by the parties, it will be presumed that the conditions upon which the order was made have not been complied with.
Under the issues made by the pleadings in this case, the only question for the jury’s consideration was whether the defendant was entitled to a deduction from the amount sued for. The question was submitted to them under fair instructions from the court, upon conflicting evidence, and the jury found for the plaintiff.
Affirm. | [
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McCulloch, J.
Appellant and appellee were owners, as tenants in common, of certain lands in Faulkner County, and divided them, executing deeds to each other. By a collateral written contract appellant agreed to pay appellee the sum of $280 as the estimated difference in valuation between the two shares. At'the time of the division there was an unexpired contract between the parties whereby appellee leased the lands from appellant and agreed to pay a certain amount of annual rent and to keep up all the improvements on the farm and surrender it at the expiration of the term in good repair and in good state of cultivation. In the partition it was stipulated that the division should not cancel or affect the lease contract except as to payment of taxes.
After the expiration of the term of lease appellee commenced this suit in equity to recover said sum of $280 and to enforce a vendor’s lien on the lands which fell to appellant in the partition.
Appellant filed an answer and counterclaim, alleging that appellee had failed to maintain the improvements, as agreed in said lease contract, on the lands which fell to her in the partition; that when the premises were surrendered to her the improvements had deteriorated until they were worthless, and the place was not tenantable, and that, in order to put the place in repair as provided in the contract, she was compelled to expend sums of money in excess of $280. She claimed damages in that sum on account of appellee’s alleged non-performance of the contract.
The court sustained a demurrer to the answer and counterclaim, and, upon appellant’s failure to plead further, rendered a decree against her for the amount of the debt sued for. She appeals to this court.
The statute provides that a defendant may set forth in his answer as many grounds of defense, counterclaim and set-off as he shall have. Kirby’s Digest, § 6098.
The counterclaim is defined by the statute to be “a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contract or transactions set forth in the complaint, as the foundation -of the plaintiff’s claim, or connected with the subject of the action.” Kirby’s Digest, § 6099.
There is no relation between the two causes of action set forth in the complaint and in the counterclaim. The counterclaim does not arise out of the contract or transaction set forth in the complaint, nor is it connected with the subject of the action., Hays v. McLain, 66 Ark. 400; Barry-Wehmiller Machine Co. v. Thompson, 83 Ark. 283; Daniel v. Gordy, 84 Ark. 218. The only connection between the two causes of action is that thev each grew out of transactions concerning the same tract of land. This is not sufficient connection to make one the proper subject of counterclaim in an action to recover on the other.
Affirmed. | [
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Hile, C. J.,
(after stating the facts). Where an appeal on behalf of the State is desired, the statute provides that the prosecuting attorney shall pray the appeal, and the clerk shall make out a transcript of the record and transmit it to the Attorney General. If the Attorney General, on inspecting the record, is satisfied that error has been committed to the prejudice of the State, and upon which it is important to the correct and uniform administration of the criminal law that the Supreme Court should decide, he may lodge 'the transcript in the clerk’s office of the Supreme Court and take the appeal. But a judgment in favor of a defendant .which operates as a bar to further prosecution shall not be reversed by the Supreme Court, even though error was committed in the trial to the prejudice of the State. Sections 2602, 2603, 2604, Kirby’s Digest. This is a method afforded the law officers of the State to take the opinion of the Supreme Court upon questions which they consider important to t'he correct and uniform administration of the criminal law.
The court is met with an objection to a consideration of the other questions involved by the insistence that the indictment cannot be sustained, as it charges DuEaney with being an accessory to a bribery of himself, the bribery committed by Kizer, instead of accusing him of being guilty of the crime of bribery. The reason for the form of the indictment is neither apparent nor important on this appeal. The gist of the charge is that DuRaney was an accessory to Kizer bribing him ; and the testimony which was offered by the State and rejected by the court, which ruling the State has asked the court to review, would be competent under this indictment if competent under an indictment charging bribery, and the sufficiency of the indictment is not a question now. Such evidence has been admitted by other courts . in a case of soliciting a bribe (Higgins v. State, 157 Ind. 57) and in attempting to corrupt a juror (State v. Williams, 136 Mo. 293), and no distinction in principle can be discerned between such cases and one where the charge is being an accessory to bribery of the defendant himself.
The testimony of Cox, which the State offered and which the court refused to admit, would have proved, if the jury had believed it, that DuRaney held the position of- chairman’ of the Railroad Committee through Cox’s influence; and that he'had an agreement with DuRaney to pay him a thousand dollars, and did pay him that sum, to do Cox’s will in regard to railroad matters, and that the general agreement also included other matters, which were any bills that came before that committee in which Cox was interested, or in which corporations that he represented were interested; that DuRaney was to take money on them as a bribe for doing his will; that he did take it in regard to railroad legislation and on some other measures in pursuance of the general agreement to do Cox’s will, and that money was put up to defeat this bill, and Cox was interested in it, but Cox was absent when the bill came up, which was the reason that he did not personally give the money to DuRaney upon it; but the State could not connect Cox and the defendant regarding this particular bill, other than through the general scheme above stated, which scheme was entered into at the beginning of the session and before the telephone bill was introduced. Was this testimony of Cox competent?
The principle of evidence that offenses or acts 'similar to the one charged may be competent for the purpose of showing knowledge, intent or design is as thoroughly established as the general proposition that other crimes or offenses cannot be shown in evidence against a defendant charged with a particular crime. While the principle is usually spoken of'as being an ex ception to the general rule, yet, as a matter of fact, it is not an exception; for it is not proof of other crimes as crimes, but merely evidence of other acts which are from their nature competent as showing knowledge, intent or design, although they may be crimes, which is admitted. In other words, the fact that evidence shows the defendant was guilty of another crime does not prevent it being admissible when otherwise it would be competeht on the issue under trial. Higgins v. State, 157 Ind. 57; 1 Wigmore on Evidence, § 300. This court has applied the principle under discussion in Howard v. State, 72 Ark. 586; Johnson v. State, 75 Ark. 427; Woodward v. State, 84 Ark. 119.
The Court of Appeals in New York stated the principle as follows: “Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistakg.or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.” And in discussing the fourth ground above enumerated, it says: “Fourth: As to a common plan or scheme. It sometimes happens that two or more crimes are committed by the same person in pursuance of a single design or under circumstances which render it impossible to prove one without proving all. To bring a case within this exception to the general rule which excludes proof of extraneous crimes, there must be-evidence of system between the offense on trial and the one sought to be introduced. They must -be connected as parts of a general and composite -plan or scheme, or they must be so related to each other as to show a common motive or intent running through both.” People v. Molineux, 168 N. Y. 264.
Mr. Wigmore,- in speaking of the admissiblity of such evidence in charges of bribery, says: “On a charge of bribery, any of the three general -principles — knowledge, intent and design— may come' into play. To show' knowledge of the nature of the transaction, a former transaction of the sort may serve, as indicating an understanding of the particular transaction. To show intent, another transaction of the sort may serve to negative good faith. To show a general design, a former attempt towards the same general end may be significant.” x Wigmore on Evidence, § 343. In the notes to this section may be found a review of the authorities; and it is found that they are not uniform in sustaining the principles announced by Mr. Wigmore, and he indulges in some caustic criticism of the courts that take views opposed to his statement-of the correct principle.
The best thought on the subject seems to be with Mr. Wigmore, and is found applied in the following bribery cases: Guthrie v. State, 16 Neb. 667; Higgins v. State, 157 Ind. 57; State v. Schnettler, 181 Mo. 173. The last case is especially pertinent here. Schnettler was on trial charged with accepting a bribe, when a member of the House of Delegates in the city of St. Louis, in regard to a certain bill authorizing a corporation to construct, maintain and operate a street railway business on certain streets and other public places in said city. Evidence was adduced to show that a “combine,” as it was called, was formed by members of the House of Delegates to corruptly control legislation. Over the objection of the defendant, the State was permitted to prove that the defendant had received $2500 as a bribe to induce him to cast his official vote in favor of a bill previously pending before the House of Delegates affecting the lighting of t'he public streets of St. Louis — a separate and distinct measure from the one concerning which he was charged with bribery. The court said: “The authorities all hold that as a general rule the State cannot prove against a defendant the commission of offenses other than the one charged and for which he is upon trial; but an exception exists with respect to this rule where the collateral crime is brought into a common system, a system of mutually dependent crimes, or is so linked to the crime under trial as to show that it is part of the same scheme or understanding, or in some way have some logical connection with the crime charged.” Applying the above announced principle to the facts of the case, the court then said: “It appears from the evidence that about' the time of the organization of the House of Delegates a combination was entered into between various members of that body, including the defendant, for the purpose of controlling legislation by t'he members of the combine demanding and receiving money consideration for the passage or defeat of certain bills which might be brought be fore them, to be paid by-the individuals, corporations or parties interested therein, and that defendant did in fact receive the sum of two thousand five hundred dollars on account of his vote on the lighting deal. This arrangement was not only with respect to the lighting deal in which he received two thousand five hundred dollars for his vote, but it applied to all other matters of a similar character which might come before the House of Delegates, and was, therefore, part of the same scheme, or arrangement, and logically connected with the charge in the information, hence formed an exception to the general rule, and the facts in respect thereto were admissible in evidence for the purpose of showing that the crime charged was within the scope of the purpose for which the conspirators were banded together, and to explain and corroborate other testimony which bore directly upon the commission of the crime charged.”
The bill mentioned in this indictment was before the committee of which defendant was chairman. The evidence offered tended to prove that all bills affecting corporations which were referred to the committee of which he was chairman should be looked after by him in the interest of his. corrupt general agreement with Cox, where Cox was interested, and that Cox was interested in this bill. While it is not offered to be shown that DuLaney knew that Cox was interested in this particular bill, yet the bill was of that character that was covered by his general agreement with Cox, and it was a part of the same scheme and arrangement, and logically connected with the matters covered in his general agreem'ent. A perusal of the evidence in the case shows that, had the State’s witnesses been believed, the jury would have been authorized to convict; and, on the other hand, had the defendant’s witnesses been believed, the defendant was fully-exonerated of the charge against him, and the jury warranted in believing the charge against him an effort to ruin him bjr his personal and political enemies. In view of such state of the evidence, it was manifestly important that proper corroborating evidence of either side be not excluded. The evidence offered was admissible for the purpose of showing that the crime charged was within the scope of the purpose for which it was alleged the defendant and Cox had conspired, and to explain and corroborate other testimony which bore directly upon the commission of the crime charged, which testimony might foe meaningless unless pointedly explained by this general corrupt agreement to which it was alleged this defendant was a party.
It is therefore the opinion of the court that the circuit court erred in not admitting the offered evidence. | [
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Hire, C. J.
This is the second appearance of this case here. See St. Louis S. W. Ry. Co. v. Leder, 79 Ark. 59. On the reversal, there was a trial, resulting in a verdict in favor of the plaintiff for $240, and the railroad company has appealed. The substance of the facts will be found in the statement of facts, with such instructions as here commented upon.
It is contended that the second and third instructions, given on behalf of the plaintiff, are in conflict with the third and fourth given on behalf of the defendants. The second and third instructions are correct general statements; and the third and fourth given at the instance of the defendant are also correct statements where applicable to excuse the carrier for a failure to perform its duties. It would have been better form, and would have made the instructions more clear, had the rule constituting the excuse been stated along with the rule stating the general duty resting upon the carrier of furnishing cars. But, as has frequently been said by this court, all of the law of the case cannot be stated in one instruction; and, so long as all of the instructions are correct statements, and, when considered together, present every proper view of the facts, and are not in conflict with each other, there is no error in presenting them separately. What was said in St. Louis S. W. Ry. Co. v. Graham, 83 Ark. 61, is applicable here: “Criticisms are made of some of the instructions, in thac they seem to permit a recovery if the jury find the defendant guilty of negligence, without the qualification ‘and unless they find the deceased not guilty of contributory negligence.’ Taking these instructions as a whole, the court think they made it clear to the jury that contributory negligence on the part of deceased would defeat a recovery, even should they find the defendant guilty of negligence. It is generally impossible to state all the law of the case in one instruction; and • if the various instructions separately present every phase of it as a harmonious whole, there is no error in each instruction failing to carry qualifications which are explained in others;” citing authorities.
The defendant endeavored to have the court instruct'the jury that if the plaintiff could have procured cars in January and February to ship their hay, and the market had not depreciated, or was as good as in December, no recovery other than for nominal damages could be had for the hay which was sold before the market price fell. The court properly refused to give this instruction. This theory would require the shipper to await the turn of the market to find out whether the railroad company had injured him by failing to furnish him cars. If there should be a rise in the market in thé price of the commodity he was-offering, he would be benefited -by the refusal of the railroad company to furnish him cars; if the market price fell, he would be more greatly damaged than had he sold at the price obtaining at the time of the refusal. If he.continued to hold his commodity and the price went down, the railroad company could well have contended, in a suit claiming the difference in price when the goods were offered and that to which it had fallen later, that they were only liable for the price that prevailed at the time they failed to furnish him with cars.
In this case the business necessities of the parties required them to sell the hay at the price prevailing in the locality, instead of getting a better price elsewhere, .which they would have received had they been able to ship to the desired market. That difference was the true measure of damages. 3 Hutchinson on Carriers, § 1366; St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 112; Crutcher v. Choctaw, O. & G. Rd. Co., 74 Ark. 358; Choctaw, O. & G. Rd. Co. v. Rolfe, 76 Ark. 220.
Defendant asked, an instruction that the plaintiffs could not recover damages for the depreciation in the price of so much of the hay as was on 'their farm, five miles from the station. The facts were that the hay which the plaintiffs desired to ship was stored partly in their warehouse near the station and partly in a barn on their farm five miles distant. Whenever the plaintiffs got a car, they loaded the hay from the warehouse near the station, or hauled it from their barn on the farm. This was the customary and usual method of shipping hay. Ir is undisputed that the plaintiffs had the hay under their control and ready for shipment as soon as cars were furnished therefor; and it cannot be questioned that they in good faith demanded cars to ship this identical hay, which was ready for shipment according to the usual, method of shipping such commodities when the demand for cars was made.
The shipper has a reasonable time, after his car arrives, to load it. This is not a question of delivery to the carrier, but is a question of furnishing cars in order that the shipper may make delivery to the carrier. The mere fact that the commodity was not on the platform is not an excuse for failing to furnish cars when the commodity is under control of the shipper and ready for shipment in the usual way such commodity is shipped. St. Louis, I. M. & S. Ry. Co. v. Ozier, 86 Ark. 179; St. Louis, I. M. & S. Ry. Co. v. Wynne Hoop & Cooperage Co., 81. Ark. 373.
The verdict is assailed as being excessive; and probably some of the items claimed would not be recoverable. But there is sufficient undisputed evidence to sustain the amount of the recovery, and hence these other matters become unimportant.
The judgment is affirmed. | [
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McCulloch, J.
Appellants, as heirs at law of James H. Thompson, deceased, sue to recover a quarter section of land in Mississippi County.
In 1885 James H. Thompson purchased said tract of land, which was swamp and overflowed land, from the State of Arkansas, paid the purchase price, and received a certificate of entry. He died in 1861, leaving surviving his widow, Ann Thompson, and two children, who continued in possession of the land. In 1870 the State Eand Commissioner, upon proof being made by affidavit filed in his office of the loss of said -certificate, issued a duplicate certificate to the widow, Ann Thompson ; and on February 23, 1870, the Governor of the State executed to Ann Thompson his deed on behalf of the State purporting to convey said land to her in fee simple. The deed contained a recital that “the Eand Commissioner of the State of Arkansas did grant his certificate, dated the 12th day of February, 1870, and num bered 56, to'and in favor of Ann Thompson, widow of James H. Thompson,” for said land. It also recited that “Ann Thomp-' son is entitled to a deed from 'the State of Arkansas for said lands,” and purports to convey the same to “Ann Thompson and her heirs and assigns.” The same language is employed in the habendum clause, and in no part of the'deed is any reference made to the prior issuance of the certificate to James H. Thompson. This deed was duly recorded, and on January 2, 1900, said Ann Thompson, _ who had continued in possession of the land up to that time, sold and conveyed it to appellee, who paid a valuable consideration and claims to be innocent of any actual knowledge or information concerning the issuance of a certificate to James H. Thompson.
Appellants pray that the appellee be declared to be a trustee for them as equitable owners of the land, and that the same be decreed to them.
The preponderance of the testimony supports the finding of the chancellor that appellee had no actual knowledge of any infirmity in the title, and the only question of law presented for our consideration is whether or not he is chargeable with constructive notice of the purchase of the land by James H. Thompson and the - issuance to the latter of the certificate of entry.
It is a well established principle of law that a purchaser of real estate must take notice of all prior recorded instruments in the line of his purchased title. Is a certificate of entry issued by the State prior to the issuance of a patent to another person to be considered in the line of title of persons holding under the patent so as to charge them with notice of outstanding equities under the certificate? :
This court seems to have already answered this question in the negative. Osceola Land Co. v. Chicago Mill & Lbr. Co. 84 Ark. 1. In that case, which involved this question, Mr. Justice Riddick, speaking for the court, said: “Chatfield held under a patent from the State, and those who purchased from him could, in the absence of actual notice, rest upon the presumption that the officers of the State had done their duty and issued the patent to the person entitled to receive it.”
The same view is expressed by the Supreme Court of the United States in United States v. California & Oregon Land Co., 148 U. S. 31.
My attention is now directed to the fact that Mr. Justice Battue and myself áre noted as dissenting in the case of Osceola Land Co. v. Chicago Mill & Lbr. Co., supra. This is an error. We both concurred in the result reached by the court in that case* but differed with the other judges, who held that the tax confirmation decree in favor of B'oynton had the effect of transferring any equitable right or title which Rozell may have had. We thought that the decree did not have such effect, and that for this additional reason the decree of the chancellor was erroneous, and should be reversed. We should have been noted as concurring in the result, but not in the opinion, instead of dissenting.
But it" is contended by counsel for appellants that, conceding that appellee was not chargeable with constructive notice of the prior certificate of entry issued to James H. Thompson and the equitable title which passed thereunder, the recitals of the patent to Ann Thompson were sufficient to put him upon actual notice of the prior certificate. The patent recites that it was issued upon a certificate issued from the land departments “in favor of Ann Thompson, widow of James H. Thompson.” It is argued that this recital was sufficient to indicate that Ann Thompson took the title as widow of James H. Thompson and by virtue of her right, as widow, and that it was notice to appellee that Ann Thompson held the title in trust for the heirs of James H. Thompson. Appellee was, of course, chargeable with notice of all recitals in the conveyance in the chain of his title; but we do not think this recital was sufficient to indicate that the conveyance was to Ann Thompson as widow or by virtue of her rights as widow. The employment of the words “widow of James H. Thompson” can only be regarded as descriptive of the person, and not as limiting the estate taken under the patent. 13 Cyc. 625; Jackson v. Roberts, 95 Ky. 410; Richardson v. McLemore, 60 Miss. 315; Barrett v. Cochran, 11 S. C. 29; Brown v. Combs, 29 N. J. L. 36; Hart v. Seymour, 147 Ill. 598; Kanenbly v. Volkenberg, 75 N. Y. Supp. 8.
Decree affirmed. | [
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Battle, J.
J. E. Horton sued I. C. Jackson, A. C. Thompson, and Milton Bridges for libelling him by the publication in a newspaper of the following notice:
“Notice is hereby given that by order of Zion Hill Local No. 680, John F. Whorton is hereby denounced as a traitor to the order, and that he is not worthy of the confidence or respect of any member of the order.
“Done by order of the Zion Hill Local No. 680, April 28, 1906. Other papers please copy.
“I. C. Jackson, Pres.
“Attest: A. C. Thompson, Sec.-Treas.”
The defendants denied that they published or caused to be published the foregoing notice. The undisputed evidence in the case shows that they did not publish such notice or cause it to be published. But they did request the publication of the following notice:
“This is to certify that John E. Horton is expelled from Zion Hill 1/ocal Union No. 680 for violation of his obligations and divulging secrets of the order. By order of Zion Hill Union No. 680, April 2, 1906.
“I. C. Jackson, Pres.
‘■‘Attest: A. C. Thompson, Sec.-Treas.”'
And in lieu thereof the first mentioned notice was published. In the last mentioned notice they stated that plaintiff had been expelled from a certain society for violation of his obligations and divulging secrets of the order. This was true. There was only one publication of the first -notice, and nope of the last.
The court refused to instruct the jury in the trial in the case at the request of the plaintiff as follows:
“You are instructed that a notice published in a paper is presumed to have been authorized by those whose names appear as subscribing to said notice. And if the defendants, Thompson and Jackson, discovered and read said notice above their respective signatures and did not correct the same in that samé public manner as it originally appeared, they, the said Thompson and Jackson, will be held as ratifying the same, and are therefore as liable, if liable at all, as if they had authorized said notice to have been printed in the first instance.”
The defendants recovered judgment, and the plaintiff appealed.
The two notices are entirely different and clearly distinct. To the publication of the first the defendants were not parties. When it was published, the wrong was complete, and the defendants inflicted no injury thereby, and did not thereafter add to the injury already done, and the last, being so entirely different, furnished no excuse for its publication. They had done no wrong by its publication. Why should they repair the wrong done thereby ? That should be done by the parties responsible folks existence.
The court properly refused to instruct as the plaintiff requested. But appellant says if it was not -correct, the court should have given one upon the same subject which was, and cites Bruce v. State, 71 Ark. 475, to support his contention. But that case, so far as it supports such contention, has been impliedly and is now expressly overruled. See Snyder v. State, 86 Ark. 456; Allison v. State, 74 Ark. 444; Mabry v. State, 80 Ark. 349.
Judgment affirmed. | [
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Hiuu, C. J.,
(after stating the facts.) “Authority to convey can only be given by deed, while authority to sell may be given by parol.” Clark & Skyles on Agency, § 227; Daniels v. Garner, 71 Ark. 484. A contract for the employment of an agent to find a purchaser of lands is not within the statute of frauds. McCurry v. Hawkins, 83 Ark. 202.
While there is a slight error in the description of the land in the written power to Raleigh & Morris to sell, describing it as 70 x 70 feet instead of 70 x 75 feet, yet authority to sell the property in controversy was indisputably given by parol, and in the writing there was a mere inaccuracy of description. The written contract of sale signed by the brokers was sufficiently definite in the description of the property to identify it and enable it to be properly conveyed. Lane v. Queen City Milling Co., 70 Ark. 355; Harvey v. Douglass, 73 Ark. 221; Darr v. School District, 40 Ark. 237; Walker v. David, 68 Ark. 544.
“In the absence of special authority or custom or usage to the contrary, an agent authorized to sell land usually has no implied power to sell on credit.” Clark & Skyles on Agency, § 232; Henderson v. Beard, 51 Ark. 483. Therefore, it must be taken that the authority of Raleigh & Morris in this case was limited to sell for cash, and the primary question is, whether the memorandum of sale called for cash or credit. If it was a credit sale, it was beyond the scope of the agent’s power, and Gans was not bound. If this was a credit sale, Gans would not be bound for the further reason that no definite time or term was fixed for the payment of the credit, and it would be too indefinite • for specific performance. If, on the other hand it was a sale for cash, the defenses of Gans are cut from under him.
The price was to be $35,500, payable $10,000 cash and the balance to be arranged to the satisfaction of the owners. Under a contract essentially similar to this, Chancellor Zabriske said: “The only material part of this contract that is not definite, is the credit to be given on the mortgage, and whether with interest or not. * * * Here there was no agreement for any time. The purchaser is not entitled to any credit. In such case the mortgage should be made payable on demand; and it is the duty of a court of equity, in order to prevent a fair and just agreement from being defeated by a mere technical objection, to presume that such was the intention of the parties, and to give the agreement that construction. This makes the written agreement certain in all its parts.” This case went before the Court of Errors and 'Appeals, and was . affirmed. Richards v. Green, 23 N. J. Eq. 32 and 536.
In Sturdivant v. McCorley, 83 Ark. 278, Mr. Justice Riddick, speaking for this court, said: “As no time was set for the payment, the debt was in law payable on demand. * *• * The courts generally hold that a debt payable on demand is due immediately, so that an action can be brought at any time without any other demand than the suit,” citing authorities.
These principles control here. The purchase price was $35,500. The agent arranged for $10,000 to be paid in cash, and the balance to the satisfaction of the owners, which would only mean that if the owners would accept credit and fix terms thereof -it could be so arranged, but if the owners did noc extend the credit the $35,500 was payable on demand. Had Kempner refused to perform the contract, then Gans could have tendered a deed and recovered the $35,500 of him. 9 Cyc. p. 260, 300. This being true in regard to Kempner, the converse is likewise true in regard to Gans, and he must be held to be bound to convey as Kempner was bound to pay.
The contract was valid, and Kempner is entitled to specific performance. Reversed and remanded with directions that a decree for specific performance be entered.
Mr. Justice Hart presided in the chancery court, and is disqualified. | [
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Battue, J.
W. E. Jamison was in the employment of the St. Louis, Iron Mountain & Southern Railway Company. He had been ten or eleven years at the time he was injured as hereinafter stated. He was employed as a section hand,'the principal part of whose work was to take up old ties and. rails and replace them with new. In doing this work the bolts which held the old rails together were sometimes broken. This was not an uncommon occurrence on defendant’s road, and was well known by Jamison, and had been done by himself, and was attended by danger of injury to employees at the time engaged in the work. It was necessary to be done when nut attached could not be unscrewed. In the month of December, 1906, Jamison and others in the employment of the railroad company, in the course of their employment, were engaged in removing the old track on the Knobel-Helena branch of the company’s road, between Lafe and Gainesville in Greene County, and replacing it with new and larger steel rails. While so engaged, many bolts were broken before the 17th day of December, 1906, when the foreman of such employees ordered one of them to break a certain bolt, which he (the employee) did by striking it so as to make a part of it fly in the direction of Jamison and hit and severely injured him. He brought this action against the railroad company to recover damages on account of the injuries received, and recovered judgment. Was he entitled to recover?
“When a servant enters into the service of another, he assumes all .the ordinary and usual risks and hazards incident to his employment. He is presumed to have these risks in contemplation, and to contract in reference thereto when he enters into the employ of the master, and consequently cannot recover for injuries resulting to him therefrom.” Southwestern Telephone Co. v. Woughter, 56 Ark. 206.
In this case the plaintiff had been in the service of the defendant for ten or eleven years at the time of the accident, and in that time bolts were broken in removing old rails in the railroad track of the company for the purpose of replacing, them with new. While they were not in all such cases broken, yet it was a means employed in removing them. Plaintiff knew this, and, when he entered into or continued in the service of defendant, assumed the risks of dangers incurred by the breaking of bolts in such removal as an ordinary incident, and the railroad company was not liable to him for the damages caused by the breaking. Railway Company v. Davis, 54 Ark. 389; Kuhns v. Wisconsin, etc. Ry. Co., 70 Iowa 561; Abbot v. McCadden, 81 Wis. 563; 3 Elliott on Railroads, (2 Ed.), § 1289, and cases cited. And the order of the foreman in this case did not make it liable. The evidence does not show that there was any negligence in making the order, or that it was improper. The foreman did not direct how the bolt should be broken, neither was it his duty to do so; the presumption being that the servant who ' did the breaking knew how.' It was one of the duties he had undertaken to perform when he was employed. If the injury received from the breaking was caused by the negligence of any one, it was of the servant in driving a part of the bolt in the direction of plaintiff. ' If it was, 'the defendant is not liable for damages, the plaintiff and the servant at that time being fellow servants.
Judgment reversed and action dismissed. | [
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Smoote, Sp. J.
This is the second time this case has been before this court. See, Hershey v. Clark, 35 Ark., p. 17.
Abram and Aaron Clark were brothers. They owned, as-tenants in common and in equal shares, certain real and personal property. Besides this, neither of them, during their' joint, lives, seems to have owned any other property. The real estate owned by them was, and is, situated in the Counties of Sebastian, Pope, Johnson, Perry and Yell.
The two brothers, during their lives, and on the nth day of May, 1850, mutually agreed, in writing, that the survivor should take and become the sole owner of the whole of the property, . real and personal, and hold the same as his own absolutely. Afterwards, and on the 17th day of May, 1851, Abram Clark ' died, without having made any other testamentary disposition of his property than that contained in the said written agreement between the brothers. He died unmarried and without issue of his body, leaving him surviving, his mother, Nancy Clark; his brother, Aaron Clark, and his sisters, Sarah.Clark, Susan Clark, Elizabeth Miller, and Ann E. Hershey, his only heirs-at-law and distributees.
Upon the death of Abram, Aaron took possession of all the property as his own, and Nancy, the mother, by her deed of the 8th of December, 1851, conveyed her entire interest therein to him, and he held possession of all of the property, claiming.; it as his own until his death.
Susan died duringthe lifetime of Aaron, in 1851, unmarried, without issue and intestate, leaving her surviving the said Nancy, her mother, and the said Aaron, Sarah, Elizabeth and Ann E., her brother and sisters, her only heirs-at-law and distributees.
Aaron died on the 14th day of November, 1855, unmarried and without issue, after making and publishing his last will, which was duly probated. By this will he bequeathed all of his personal property, and devised all of his lands lying in Sebastain and Pope Counties, to his mother Nancy and his .sister Sarah, to hold in common; to his sister Elizabeth he devised all his lands lying in Johnson and Perry Counties, and to his sister Ann E., he devised all his lands lying in Yell County, and any other lands undisposed of by the will. Aaron, during his lifetime, acquired lands other than those owned by himself and his brother Aaron in common.
All of the legatees and devisees under the will of Aaron (except perhaps Ann E., about whom as to this, there is a -question in the record), seem to have accepted under the will, and entered upon the enjoyment of the property therein bequeathed and devised to them, and remained in undisputed possession thereof until about the time this suit was instituted, except Elizabeth Miller, who so remained in possession until she died in 1867, leaving her surviving Abram C. Miller, her only heir-at-law and distributee, who has been in possession since her death.
The mother, Nancy, died, on the 27th of November, 1861, after making jointly with Sarah what purported to be her last will, the contents of which it is unnecessary to notice here She left surviving her, her said daughters Sarah, Elizabeth and Ann E., her only heirs and distributees.
Ann E., instituted this suit in October, 1870, the principal defendants being Sarah Clark, and Abram C. Miller, the son of said Elizabeth Miller, deceased. The only other defendants are S. F. Clark, as executor of the will of Aaron Clark, and her husband, B. F. Hershey, as administrator of the estate of Nancy Clark, who are little more than nominal defendants. The object of the suit is to have partition and an account of rents, profits and the proceeds of the sales of such of the lands as had been sold, and of certain personal property, and the like, as part of the estate and property hereinbefore mentioned, and to have her interest therein ascertained and enforced.
Sarah Clark and Abram C. Miller answered, relying principally on the written agreement made by the brothers in their lifetime, the deed of her interest by Nancy, the mother, to Aaron, his will, and the joint will of Nancy and Sarah, in support of their rights t'o the property; they also interposed the statute of limitations, and made their answer a cross-complaint.
At the hearing in the Circuit Court the Chancellor dismissed the bill for want of equity, and Ann E. Hershey appealed to this court.
Upon consideration here, this court reversed-the decree of the Chancellor below, and sent the cause back to the Circuit Court, holding that the written agreement between the brothers and the joint will of Sarah and Nancy were void, but sustaining the will of Aaron, so far as it could legally operate upon the property therein bequeathed and devised, and also the sale of her interest by Nancy to Aaron; and saying that Ann E. “is not barred by the statute of limitations. She is entitled under our statutes of descents and distribution, to a share of the real estate of which her brother Abram died possessed; also to her proper share of the real and personal property of her sister Susan and her mother. She is entitled to an account, to be taken under the direction of the court, to ascertain these interests. She must elect, however, which her bill virtually does, to disclaim all rights to the property in question acquired directly to herself through the will of her brother Aaron. The will disposes of interest which she claims adversely, and a case for election arises.”
When the case under this first appeal went back to the Circuit Court, Sarah and Miller filed an amendment to their answer, alleging, among other things, that Ann E., the present appellee, had elected to take under the will of Aaron, and that she was barred by laches and acquiescence. This amendment to the answer was rejected by the court below when first presented, but afterwards permitted to be filed. The appellee now insists that the defense above referred to, as contained in the amendment, ought not to be considered, principally upon the ground that it was diposed of and decided by this court on the first appeal.
When a question of law arising in a case has once been decided by this court, it becomes a part of the law of that case, unless reconsidered and repudiated by this court, at the term during which the decision was made; and this, too, without regard as to whether such decision was right or wrong. Porter v. Doe et al., 10 Ark., 187; Baxter v. Brooks, 29 Ark., 185.
But this court cannot decide a question which is not before it for decision. Phelan v. San Francisco, 9 Cal., 16; Barne et al. v. Winona R. R. Co., 117 U. S., 228.
Mr. Justice Field, in delivering the opinion of the court in the above cited case of Barney et al. v. Winona R. R. Co., said : “We recognize the rule that what was decided in a case pending before us on appeal is not open to reconsideration in the same case, on a second appeal on similar facts. The first decision is the law of the case, and must control its disposition; but the rule does not apply to expressions of opinion bn matters the disposition of which were not required for the decision.”
From an examination of the record upon the first appeal, and the opinion then delivered, we do not think the question of election was before this court; nor do we think that this court in that opinion, in remarking that the present appellee had, by her complaint, virtually elected not to take under the will, intended to cut off investigation as to that, or to prevent the present appellants from showing that she had elected to take under the will, if, in fact, she had done so.
Under this state of case, we are of opinion that the court below did not exceed its jurisdiction, in allowing the amendment to the answer, and that the question is before us for consideration. ' This view, it seems to us, is sustained by the authorities above cited, and our own liberal statute of amendment.
We hold, however, that the opinion of this court, in the first appeal, upon the statute of limitations, does cut off the consideration of the question of laches and acquiescence upon the lapse of time, unconnected with other evidence tending to show that appellee had elected to take under the will; that if appellee is estopped at all, it is upon the ground that she had so elected in fact. In passing upon that question, lapse of time may be considered in connection with other facts in evidence upon the point.
Did the court below err'in finding that appellee had not elected to take under the will? It is true that some of her acts in evidence tend to show that she had made such election.
But we are satisfied, from the evidence, that neither she, nor any of the parties in interest, had any knowledge of the fact that she had any right, title or interest in the property,"until a short time before the commencement of this suit. She knew of the existence of Aaron’s will, and the transactions previous thereto, as hereinbefore stated. But she appears to have been ignorant of the fact that she had any right or title to the property she is sueing for herein whatever. In fact, all the parties seem to have been mutually laboring under this mistake. If this is a mere mistake of law, the appellee cannot, of course, avail herself of it.
Judge Story says : “Indeed, where the party acts upon the misapprehension that he has no title at all in the property, it seems to involve, in some measure, a mistake of fact, that is of the fact of ownership arising from a mistake of law. A party can hardly be said to part with a right or title of whose existence he is wholly ignorant, and if he does not so intend, a court of equity will, in ordinary cases, relieve him from the legal effect of instruments which surrender such unsuspected title.” 1st Story's Equity Jurisprudence, sec. 122.
And in discussing the doctrine as to mistake, with reference 'to a mortgage which had been released by the plaintiff in the case, who was seeking relief upon the ground that he was totally ignorant of his title at the time of the release; and who had been relieved by Lord Chancellor Nottingham, Judge Story, among other things, says : “ If it [the case] proceeded upon the ground that the plaintiff had no knowledge of his title to the mortgage, and therefore did not intend to release any title to it, the release might well be relieved against as going beyond the intentions of the parties, upon a mutual mistake of the law; and if both parties acted under a mutual misconception of their actual rights, they could not justly be said to have intended what they did.” 1st Story’s Equity Jurisprudence, sec. 123.
Again he says : “ There may be a solid ground for a distinction between cases where a party acts or agrees in ignorance of any title in him, or upon the supposition of a clear title in another, and cases where there is a doubt or controversy, or litigation between the parties as to their respective rights.” 1st Story’s Equity Jurisprudence, sec. 130.
As to the matter under discussion we refer also to the case of Griffith v. Sebastian County, 49 Ark., 24, and the authorities therein cited.
In that case, Judge Smith, in delivering the opinion of this court, said (p. 33): “A fact is not less a fact though it be the offspring of the law;” and (p. 34) “ a court of equity will relieve against a mistake of fact superinduced by a mistake of law.”
See, also, Scribner on Dower, pp. 481 to 492, where the subject of election by widows as to dower is discussed. We refer also to 4th Dessau's Equity, 274.
All the facts tending to show an implied election under the will by the appellee, occurred before she had come to any ¡knowledge of her title, except one. That one is an attempted sale of the lands devised to appellee, which appears from the weight of evidence to have been originally made by her husband, B. F. Hershey, and her name signed to the papers in •connection with it by him, without her knowledge; and. the transaction took place after the commencement of this suit. We, therefore, attach no weight to it as tending to prove that she had elected to take under the will.
We are next to consider, whether the lapse of time, in connection with the other facts in evidence, make out an election to take under the will. We would be much disposed to hold that the long delay of the appellee in making inquiry •about her rights, and in taking steps to enforce them, would, of itself, probably, and certainly in connection with the other facts tending to show her election to take under the will, establish that election, if it were not for some other circumstances in evidence. Under the facts as they appear, the appellee was not in a condition to enforce her rights by legal coercion until the death of the mother, Nancy, in 1861. From that time until 1865 the civil war was going on, and, for the greater part of the time flagrant in that portion of the State where the property is, and where the parties resided. To a great extent the courts were closed, and business, to some extent, suspended. Considerable numbers of the people residing there had to refugee southward for safety ; and among them, as the evidence shows, the husband of appellee. These are facts (except as to the refugeeing of her husband) of which we take judicial notice, as a part of the history of the State. These facts did not, of course, absolutely prevent her 'directly electing to take or not to take under the will. But when we •consider the confused and excited condition of things, we do not think that an election to take under the will, can be properly implied from her delay, even in connection with her other acts, as they were done in ignorance of her title to the property herein sued for.
There is no sufficient evidence of any direct election of appellee to take under the will. It is not shown that she ever agreed to do so; or that she ever entered upon the lands devised to her, or received any rents and profits from them. It is in evidence that a suit for trespass on the lands devised toappellee, was brought in the names of her husband, B. F. Hershey, and herself; and that B. F. Hershey had paid taxes on the lands. But the weight of evidence is to the effect that both these things were done without her knowledge or consent, and B. F. Hershey testifies that he paid the taxes as the agent of the appellant, Sarah. So, upon the whole case as to that point, we hold that there is not sufficient evidence that appellee elected to take under the will either directly or by implication.
Upon final hearing the court below decreed, among other things, that appellee is entitled by inheritance to an interest of n~48ths in all the lands in controversy (including the southeast quarter of the northwest quarter of section 19, township 5 north, range 16 west, and the northwest quarter of section 26, township 5 north, range 17 west), in Perry County, Arkansas, known as the Cypress Mills place, except the tract in Yell County, in which she was decreed one-third interest, and that she have partition thereof; and also rendered a decree in her favor against appellant, Sarah Clark, in the sum of $11,670.67, for rents, issues and profits; and also a like judgment against appellant, Abram Miller, in the sum of $6296.45, and decreed a lien upon the lands remaining unsold at the commencement of this action, for the payment of these judgments, from which decree the said Sarah Clark and Abram C. Miller appealed.
It is insisted by appellants that the court below erred in decreeing that appellee had an interest in the Cypress Mills place above described. It appears from the evidence that this place was conveyed by John W. Miller, the father of the appellant, Abram C. Miller, in his lifetime, to Abram Clark, in his lifetime, on account of the failing health of John W., for the ■sum of $1; that John W., who died in 1850, improved it and had the use and enjoyment of it until his death; that Elizabeth Miller, the widow of John W., and mother of Abram C. Miller, always after that had the use and enjoyment, and received the rents and profits of it, until her death in 1867, and that neither of said brothers, Abram and Aaron Clark, was ever in actual possession of it. Under these facts, we are of ■opinion that the Cypress Mills place was held by Abram Clark in trust, and that appellee has no interest in it, and that it was error to hold that she had ; and we therefore dismiss the complaint as to the said Cypress Mills place.
It is urged by appellants that the court below erred as to the interest in the lands which the appellee would be entitled to under the statutes of descents, and also as to the allowance of interest. But the appellee submits that these questions were not raised by exceptions to the master’s report and cannot, therefore, be considered here. In regard to the lands, the facts, upon which the several interests of the parties depend, appear upon the face of the pleadings and are undisputed. Being already before the court, no report as to them was necessary, and it was for the court, and not for the master, to determine the law upon these facts, and declare the extent of the several interests in the lands. As to the other point, the master might well report, under the directions of the court, what the amount of interest would be on claims or debts at certain rates, and if a party should desire to question the correctness of his computation, he might, perhaps, have to do so by exception to his report. But it would be for the court to determine, under all the circumstances of each particular case, whether the amount of interest so reported should be allowed without the necessity of exception to the report. But outside of this, we find in the record exceptions as to interest which were reserved by the court for consideration, and not determined until the hearing, sufficiently broad to raise this question.
We therefore hold that both the foregoing questions are before us for consideration.
There is a controversy in the record as to the shares of the parties in the lands in controversy.
It appears that after the death of Abram, Aaron sold a part of the lands owned by them in common; and also that after the death of Abram, Aaron purchased certain other lands, a large part of which he sold before his death. We hold that the appellee, Ann E., has no interest or share in said lands sold as above mentioned which she can assert in this action, and that the court below erred in holding that she had.
As to the shares of the parties in the lands held by Abram and Aaron in common (except so much of them as was sold by Aaron in his lifetime), we find as follows:
Of said lands in Sebastian and Pope Counties the appellant, Sarah Clark, is entitled to 37-48th and the appellee, Ann E. Hershey, to ii*48ths.
Of said lands in Johnson and Perry Counties, appellant, Abraham C. Miller is entitled, as heir of his mother Elizabeth, to 7-8ths and appellee Ann E. Hershey is entitled to i-8th.
Of the said lands in Yell County, the appellants, Sarah Clark and Abraham C. Miller, and the appellee, Ann E. Hershey, are entitled each to i-3d.
As to the lands purchased by Aaron after the death of Abram, all of which appear to be in Sebastian County, we find as follows:
Of said lands (except so much of the same as was sold by Aaron in his lifetime) the appellant, Sarah Clark, is entitled to S-6ths, and the appellee, Ann E. Hershey, is entitled to i-6th. And we are of opinion that the court below erred in its findings as to the interest of the parties in the lands.
Interest was allowed and included in the sums for which the court below decreed personal judgments against appellants at 6 and 10 per cent, per annum, from various dates, extending back long prior to the commencement of this suit.
Mr. Wait says, in his work on Actions and Defences: “As a general rule, no interest should be allowed on unliquidated accounts for goods, wares and merchandise, without an agreement to allow it, express or implied. It has been held in New York, that in an action upon an unliquidated demand, interest; should be allowed from the time of the commencement of the action. In general, interest is not due in law on unliquidated damages or uncertain demands. Interest from the commencement of the suit is recoverable on a money demand, even though it is not claimed in the petition. If there be unreasonable and vexatious delay in making payment of an account, though it be not liquidated, interest may be recovered. Interest is considered as an incident, legally, to every debt certain in amount, and payable at a certain time. ' It is now allowed in all cases where one person detains the money of another unjustly and against his will.” (4th Wait's Actions and Defences, pp. 128, 129, 130 and 132, to which we refer for citation of authorities.)
In Tatum v. Mohr (21 Ark., p. 355), this court said : “We understand the court to have instructed the jury that, the plaintiff was entitled to recover interest upon the value of the shares thus ascertained, from the date of the exchange. This was error. On general principles, in a suit like the present, for unliquidated and contested damages, the plaintiff is not entitled to recover interest as such.”
In Brinkly and Wife v. Willis, et al. (22 Ark., pp. 9 and 10), which was a suit in equity to recover the value of certain slaves that came to the hands of an administrator, and in which a recovery was had as to a slave named George, this court said: “ But under the circumstances in this case, we are of opinion that no interest should attend that part of the value of George that shall fall to Brinkly and wife before the beginning of this suit, as there has been delay in its commencement which ought to operate against the plaintiffs.”
While we do not, from the foregoing authorities, attempt to formulate any rule applicable to all cases (see Watkins v. Wassell, 20 Ark., pp. 419, and 420) we think them quite sufficient to prevent any allowance of interest to appellee, prior to’ the institution of this suit, taking all the facts into consideration. We cannot agree with the counsel for appellee that there is, under the circumstances of this case, any implied contract for the payment of interest, or any unreasonable and vexatious withholding of it, or any withholding it against the will of the appellee. In addition to the long delay in bringing the action, all the parties were fully under the impression that the appellee had no rights at all in the property. Besides, the appellee consented to and assisted the appellant, Sarah, in the use of nearly $10,000 of notes, the proceeds of the sale of a part of the land for the benefit of her husband, and tacitly consented to the sale of another valuable part of it, by being present and making no objection to the sale, which was brought about by her husband. She and her husband lived in the house for four or five years with appellant, Sarah, during the most of which time her husband,was the agent of the appellant, Sarah ; and it is almost impossible, from the evidence, to resist the inference that she knew of all, or nearly all, of the transactions of the appellant, Sarah, in regard to the property, and made neither complaint nor dissent. These things equally affect the case as to the appellant, Abram C. Miller, owing to the' impression of all the parties as to appellee’s rights, and the undisputed possession by appellants until just before the commencement of this action. To allow interest before the commencement of the action, would be to subject appellants to loss and injury super-induced by the conduct and actions of appellee. So we hold, under the circumstances of this case, as this court held in Brinkly v. Willis, supra, that interest ought not to have been -allowed before the commencement of this suit.
It appears that Nancy and Sarah, before the death of Nancy, and Sarah, after Nancy’s death, sold certain parcels of the land in Sebastian and Pope Counties, which sales were made after Aaron’s death, and before the commencement of this suit, and that Sarah sold one parcel thereof to W, M-Cravens after the commencement of this suit, which last mentioned sale was for the sum of $500. And as it appears that appellee does not seek to interfere with these sales, we treat them as having been ratified by her, and the lands so sold as having been partitioned and set apart to the appellant, Sarah, by consent, leaving in said Counties of Sebastian and Pope the lands remaining unsold at the time of the commencement of this suit (except the lands sold to Cravens), to be partitioned between appellant, Sarah, and the appellee, giving appellee n-48ths, and appellant, Sarah, 37-48ths of the lands so held in common by Abram and Aaron, in said Counties of Sebastian and Pope; and said appellee -Jth and said appellants 5-6ths of said unsold lands in Sebastian County, bought by Aaron after Abram’s death. The tract of land in Yell County, devised by Aaron’s will to appellee, is to be partitioned between the appellee and appellants, Sarah and Abram C. Miller, giving to each of them -J-d; and the lands in Johnson and Perry Counties are to be partitioned between the appellee and Abram C. Miller, giving appellee -J-th and Miller 7-8ths.
The lands partitioned by sale and consent, as hereinbefore held, to appellant, Sarah, are valued at the prices for which they were sold, less n-48ths of $3722.60, as to said sales of said land in Sebastian and Pope Counties, held in common by Abram and Aaron, and -¡yth of $3722.60 as to said sale of said lands in Sebastian County, bought by Aaron after Abram’s death, the said sum of $3722.60 being the aggregate amount of taxes ($622.60) paid by Sarah on said lands, and of moneys ($3x00) part proceeds of sale of said lands, which she had de posited with Brooks & Latham, and which, without fault of her own, she lost by failure of said firm, and for which two sums she-was allowed credit by the court below, for the purpose of completing the partition; and the shares which may be allotted, to appellant, Sarah, in the lands in Sebastian, Pope and Yell. Counties, are to be charged with a sufficient amount of owelty to make appellee’s shares therein (exclusive of such of said, lands as Aaron sold in his lifetime) equal to n-48ths of said, land held in common by Abram and Aaron in Sebastian and. Pope Counties ; -gth of the land bought by Aaron after Abram’s-death in Sebastian County, and i-3d of the tract of land in Yell County (devised by Aaron’s will to appellee) including the-value of the lands sold by Nancy and Sarah, or either of them,, as hereinbefore stated, which owelty is to be a lien upon the-shares of said appellant, Sarah, in said lands but no personal, judgment for the same is to be entered.
It appears, however, that the appellant, Sarah, purchased; from B. F. Hershy, the husband of appellee, while he was acting as an agent for said appellant, Sarah, certain real estate in. Clarksville, Johnson County, for which she paid him the sum of $9937 in notes representing proceeds of sales of parts of said lands held in common, made by appellant, Sarah; that this transaction was made with the knowledge, consent and approbation of appellee, and that she joined her husband in the deed to appellant, Sarah; and that said real estate was not worth more than $4000, making the difference between the-price paid for, and the value of said real estate, $5937; and after the owelty to which the appellee is entitled as between herself and appellant, Sarah, is ascertained, the said sum of" $3937, less n-48ths of said sum of $9937, is to be deducted therefrom, as so much owelty already paid by said appellant, Sarah; and if said sum exceeds said owelty, then no owelty is-to be allowod said appellee.
As it does not appear that any of the lands in Johnson,, Perry and Yell Counties, in which appellee and appellant, Abraham C. Miller, are entitled to share by partition, have been sold, the question of owelty does not arise between them.
We are of opinion from the facts in evidence that, as between herself and the appellant, Sarah, the appellee ought to have her part of the rents (according to the shares she is entitled to, as hereinbefore held) in the lands in Sebastian and Pope Counties, as follows: that is to say, she is entitled to her part of the rents of said lands in Sebastian and Pope Counties, sold after the death of Nancy, from the death of Nancy up to the time they were respectively sold, so far as the evidence-shows that such rents were received by the appellant, Sarah. She is not entitled to rents from any period anterior to the death of Nancy, because before that time the rents were covered by Nancy’s life estate, with the title to which she had been reinvested by Aaron’s will; nor after the sales, because we have held said sales, owing to the circumstances under which they were made, to be a partition by consent. The appellee is also entitled to her said shares of the rents of that part of said lands remaining unsold at the commencement of this action (except the place afterwards sold to Cravens, and the lots in Fort Smith, Sebastian County, known as the homestead place), from the time of the death of Nancy, so far as-any such rents are shown by the evidence to have been in fact received by appellant, Sarah. As to the homestead place (lots 4, 5 and 6, and part of lots 9 and 10, in block 26, in Fort Smith, Sebastian County), appellee is entitled to her share of the rental value thereof from 1870, the time from which it was allowed by the court below, and of the Cravens place up to-the date of the sale thereof, for which rents appellee is entitled to personal judgment against the appellant, Sarah, with 6-per cent, per annum interest thereon from the time of the institution of this suit, as to rents then due, and on subsequent rents from the dates of their accrual, less 1 i-48th of the sum of $6047.97 as to the lands held in common by Abraham and Aaron in Sebastian and Pope Counties, and one-sixth of said ■sum as to the lands bought by Aáron after Abraham’s death, said sum having been paid out by Sarah for improvement on said land, and allowed her as a credit by the court below, and ■not questioned here by appellee on appeal. By this we are not deciding whether or not a tenant in common can recover for improvements, or set them off against rents ; we make the allowance because it was made by the court below, and is not questioned here.
Appellee is also entitled to her said share of rents arising from said lands in Johnson and Perry Counties as against the appellant, Abram C. Miller, from his mother’s death in 1867, so far as the evidence shows that the same have been received by him, for which she is entitled to personal judgment against him, with 6 per cent, per annum interest thereon from the date of the institution of this action, as to rents then due, and subsequent rents after their accrual.
The court below decreed a lien on appellmt’s shares of the unsold lands to secure the payment of rents and profits. This character of lien has been sustained by the courts of New York, but we find no discussion of the question in any of the cases in that State coming under our notice. In a Kentucky case, in which it was the only, point in issue, the matter was discussed, and the lien held not to exist; and it is denied by other authorities (Burch v. Burch, 82 Ky., 622; Jones on Liens, sec. 1155; Hancock v. Day, 36 American Decisions).
We can see no ground for such a lien on principle, and hold that the court below erred in granting it.
For the errors above indicated the decree of the court below is reversed; and this cause is remanded to the Circuit Court with instructions to make the partition and settle the accounts between the parties in strict accordance with this opinion; and with the further instructions that in doing so no further evidence shall be taken or considered outside of that which has already been taken, except as to rents accruing •subsequent to the decree herein.
Sandels, J., being disqualified, did not sit in this cause. | [
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Per Curiam.
The will gave to the widow, a life estate only, and the power of disposal vested in her was limited to her life estate in the land, as decided by this court in Patty v. Goolsby, 51 Ark., 61. See, also, Giles v. Little, 104 U. S.
Reverse and remand. | [
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Sandels, J.
Suit by appellant against Sheriff and his bondsmen, for damages alleged to have been sustained in the seizure of certain goods by the Sheriff.
The only question was as to the character of an instrument of conveyance from one Foster to West.
The deed executed by Foster to West recited the parties, being Thomas Foster of the one part, N. Straub and Henry Lohman, and D. C. Smith of the second part, and P. C. West, as trustee for said Straub & Lohman, and D. C. Smith of the third part; described the debt due to Straub individually, the debt due to the firm of Straub & Lohman, and the debt due to Smith; the desire of Foster to secure the payment of the same and then conveyed in consideration of ten dollars then received, to said West, “all the stock of merchandise, consisting of dry goods, groceries, boots, shoes, hardware, 'hats, caps and other such articles usually kept in a country store, now in the store-house of said Thomas Foster, in the Town of LaGrange, in the County of Lee and State of Arkansas, an inventory and schedule of which is hereto attached,, marked No. 1, and made part of this deed as if copied ‘ herein ’ to be held by said West in trust, that he should take immediate possession and sell said goods at private sale for thirty days for cash, at not less than the cost price of same in said store; then, if said goods were not all sold, to sell át public auction, and with the proceeds of sale to pay first all expenses, then said debts, and the balance to pay over to said Foster, said West to have the power to appoint suitable assistants, to possess said goods and to make sale of same. And in the event of his death, refusal to act, neglect or inability, the said second party had power to appoint another trustee, who should have all the powers therein conferred upon said West.”
The court found the facts from the evidence and declared the law as follows: “Thomas Foster, a merchant, was indebted to the firm of Straub & Lohman and D. C. Smith, and on the 2d day of February, 1885-, executed and delivered to D. C. Smith, one of said creditors, to be by him delivered to P. C. West, the trustee therein named, the instrument of writing introduced in evidence. By the terms of the instrument, Foster sold and conveyed to said West, a stock of merchandise in his store-house in LaGrange, Lee County, Arkansas, which was to be disposed of by West as therein directed, and the proceeds applied, after paying expenses, to the payment of the debts due Straub & Lohman and D. C. Smith, reserving the balance of the proceeds to himself. West took possession of and held said stock and merchandise under and by virtue of said instrument. Afterwards, within a few days, the defendant and Sheriff levied several valid writs of attachment upon the stock and took it from the possession of West. The suits in which said writs of attachment were issued and so levied, were against said Foster, and were duly prosecuted and judgment recovered against him for amounts which exceeded the value of the goods taken, and the latter were duly condemned and sold to satisfy said judgments, no surplus remaining. The instrument of writing by virtue of which West took and held possession of the stock of goods was not given by way of security as a mortgage or deed of trust; there is no defeasance. It does not create a lien upon the goods, but conveys them absolutely for the purpose of raising a fund to pay debts, and until this was done, Foster had no legal or equitable interest in the property that could be sold by him or reached by his creditors. The instrument was not a deed of trust in the nature of a mortgage. By its terms it was an assignment for the benefit of creditors, and considering it as a deed of assignment it is clearly fraudulent and void as to the attaching creditors.” The Circuit Court was right upon both the law and facts, and its judgment is affirmed. | [
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Per Curiam :
A mortgage which describes the property as “one black mare mule six years old in the mortgagor’s possession in White County, Arkansas,” states facts by the aid of which third persons could identify the mortgaged property and is a good description. Johnson v. Grisard, 51 Ark., 410; Jones Chat. Mort., secs. 54 and 54a.
Reverse the judgment and reman j the cause. | [
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Hemingway, J.
Upon appeal from the County Court the Circuit Court acquires only such jurisdiction as the County Court had, and may render such judgment only as the County Court should have rendered.
In the matter of the presentment of county warrants by the appellant for reissuance, it was authorized to examine them and to reject such as in its judgment the county was not justly and legally bound to pay, and reissue those not rejected. Mansf. Dig., sec. 1152. In ascertaining what warrants the county was justly and legally bound to pay, it might summon and examine witnesses, but it had no equity powers and could not direct any reference to a master to take proof, examine records and documents, and state an account. If, upon its ex .amination, it found the warrants, or any of them, just and' legal demands, it could only reissue them, and it could not decline to do so, although it might believe that upon the determination of a claim by the county against the person presenting them, he would be found indebted to it in a large sum. In this-case, although the claim of the county had been established and the amount due it ascertained, it is doubtful if the court would be authorized to cancel the warrants legally due and refuse to reissue them. An appeal had been taken from the judgment fixing the appellant’s liability, and it was entirely possible that it would not be determined until after the other cause, in which event if the court found that any of the warrants were just-and legal debts, they might be reissued and disposed of before his liability was fixed.
In the proceedings of the County Court to procure a settlement of the appellant’s account, the court was authorized duly to adjust his account, ascertain the amount due by him, and to render a judgment against him in case he failed, at the next term of the court to show cause to set aside the settlement. Mans. Dig., secs. 5844-47.
By the settlement appealed from, he was found to be indebted to the county in the sum of $118,000. But he was insolvent and his bond lost; if any warrants should be delivered to him they could be easily placed beyond the reach of legal process. Equity is invoked to prevent this.
But it is alleged and the demurrer admits, that-the rants were received by appellant as a part of the revenue of the county, and by him retained and converted. If so, he held them for the county; he was a naked trustee, and the county the real owner. A court of equity only has the power to declare the trust, and compel the delivery of the trust property to the real owner. Even if a court of law could determine all the rights of the parties, its process could not enforce them. But a court of equity in one cause, could adjudge the rights of the parties as to all the matters involved in the pend ing controversies, as well as to those not involved in either of -them, so as to do full and complete justice between them. In either case, whether the warrants were a part of the revenue •converted by the appellant, or he was found indebted to the county upon a settlement of his,account and the warrants legally belonged to him, a court of equity could, but the County Court could not, afford the proper relief. The causes pending were about the same matter set out in the complaint in this cause, but they did not seek the same object. This case, -therefore, comes within the rule announced by this court in the case of Garibaldi v. Wright, decided during the present term. The courts do not favor a multiplicity of suits, between the same parties, about the same matter, seeking the same object, and w.hen one is pending in a court of competent jurisdiction, they have declined to entertain another such because it would be unreasonable and unnecessary, and therefore vexatious and oppressive. We do not so regard this suit, but it seems to us reasonable and necessary, and we think the complaint discloses a proper case for equitable cognizance. Hatch v. Spofford, 22 Conn., 485.
The case of Grand Chute v. Winegar, 15 Wal., 373, relied upon by counsel for appellant to sustain the contrary, was not like this. There an action had been brought on certain claims which the defendant alleged were invalid. Their validity was the only matter in controversy between the parties, and the court held that as this could- be determined in the action at law, equity should not interfere.
Admitting the allegations of the bill, the defendant could not claim the benefit of the equitable principle which protects a party against stale demands. It is not a shield for fraud or concealment. The facts fail to disclose a bar by limitation, as no suit could have been brought against appellant, until his accounts were settled and a balance found due by him. Davis v. Tarwater, 15 Ark., 296; Pomeroy's Eq., secs. 418, 419 and 1080.
We think the judgment was right, and it is affirmed. | [
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Battle, J.
The Arkansas Midland Railroad Company is a corporation owning and operating a railroad between Helena and Clarendon, in this State, for the carriage of passengers and freight to and from its termini and intervening points. It has never run trains, exclusively, for transporting passengers, but the trains on which it has carried them were composed of passengers and freight cars, and carried freight. On the 12th of January, 1888, for a valuable consideration, it undertook to -carry O. G. Canman, as a passenger, on a train composed of two box cars, a baggage car and two passenger coaches, from Helena to Clarendon. The box and baggage cars were placed in front of the coaches. The train was not provided with air-brakes nor with bell pulls, but was furnished with hand-brakes and two brakemen. Canman took a seat in one of the coaches. The train moved out and was running at the rate of about eight miles an hour, and had gone a short distance when the coach in which Canman was seated left the track, turned over, and severely injured him. For the damages he suffered in consequence of the injuries received he brought this action, and alleged that they were caused by the negligence of the railroad company.
The foregoing facts were provqn in the trial. It was also proved that the road-bed of the defendant was ballasted with dirt, and evidence was adduced tending to prove, that it was impracticable to use a bell-rope and air-brakes on a train composed of freight and passenger cars; that the coach that was overturned was derailed at a point where the rail in the track, on the east side, was slightly bent out of line, and “a spike seemed to be pushed towards the east; ” and that in leaving the track the wheels on the east side of the coach went between the rails, and the others, on the outside and west of the track.
Among other instructions the couit gave the following, over the objections of the defendant, to the jury:
“ I. Where a passenger for hire being carried on the train of a railroad company, is injured without fault of his own, the law presumes that the railroad company has been guilty of negligence, which presumption the railroad must remove by evidence, and if the jury find that plaintiff, while a passenger as aforesaid on defendant’s train, was injured without any fault of his own, and the defendant has failed to satisfy you by the evidence introduced, that it was not through its fault that the accident occurred, or that it was caused by plaintiff’s own or contributory negligence, the verdict must be for the plaintiff.
“2. If the jury find from the evidence that there was a spread' or bent rail at the time and place of derailment, the jury may infer negligence from that fact, and the burden of disproving it is on the defendant.”
The defendant asked and the court refused to give the following instructions: “ If the jury find from the testimony that the train on which plaintiff was a passenger at the time he was injured was a mixed train for carrying passengers and freight, and that such train at the time when such injury was received, was not provided with air-brakes or a bell-cord, and if they further find from the testimony that it is not practicable to use air-brakes and bell-cord on such trains, then the jury are instructed that the want of such appliances was not negligence in defendant.”
The defendant asked for further instructions as to the degree of diligence, care, skill and prudence it was bound to exercise in the construction, maintenance and operation of its railroad, which the court refused to give.
The result of the trial was a verdict and judgment in favor of plaintiff, and an appeal by the defendant to this court.
The first instruction, construed in connection with other instructions given, contained no error. More appropriate words, however, and words adapted to express the idea tended, should have been used instead of the word “satisfy.” In order to overcome the presumption of negligence it was not necessary for the defendant to introduce evidence sufficient to convince the jury, beyond a reasonable doubt, that it had not been negligent. “ It is never necessary,” says the court in Shinn v. Tucker, 37 Ark., 589, “in a civil case that a jury should be satisfied of the truth of their verdict, in the sense of resting upon it, confidently. That principle belongs to criminal law. Civil verdicts should be given on preponderance alone, for the party whose evidence, considered altogether, outweighs that of the other as to the facts in issue; or, against the one having the onus, if, on the whole, the weight seems balanced.”
The second instruction given was erroneous. It assumes any spread or bend in a rail is negligence, without regard to its sufficiency to cause the derailment of a car, or in some way J 1 J or manner impair the safety of the train. It is true that the court instructed the jury, that, if they found that the accident to the train was occasioned by a defect in the road-bed or track, and “ that defendant had taken all the means which would have been taken by a cautious and prudent person in the exercise of the utmost prudence to prepare and maintain its road-bed and'track where the car was derailed,” the defendant would not be liable ; but, at the same time, it told the jury, in effect, that, if they found that there was a spread or bent rail at the time and place of derailment, they might infer that the defendant had not used such means and prudence, and was guilty of negligence.
Railroad companies “ are bound to the most exact care and diligence, not only in the management of trains and cars, but ajgQ -a struc¡-ure ancj care Qf the track, and in all the subsidiary arrangements necessary to the safety of the passengers.” While the law demands the utmost care for the safety of the passenger it'does not require railroad companies to exercise all the care, skill and diligence of which the human mind can conceive, nor such as will free the transportation of passengers from all possible peril. They are not required, for the purpose of making their roads perfectly safe, to incur such expenses as would make their business wholly impracticable, and drive prudent men from it. They are, however, independently of their pecuniary ability to do so, required to provide all things necessary to the security of the passenger reasonably consistent with their business “ and appropriate to the means of conveyance employed by them,” and to adopt the .highest degree of practicable care, diligence and skill that is consistent with the operating of their roads, and that will not render their use impracticable or inefficient for the intended purposes of the same. Philadelphia & C. R. R. Co. v. Derby, 14 How., 486; Simmonds v. New Bedford & Steamboat Co., 97 Mass., 361; P. C. & St. L. R. R. v. Thompson, 56 Ill., 138; Pershing v. Chicago & R. R. Co., 34 Am. & Eng. R. R. Cases, 405; 2 Wood’s Railway Law, sec. 301, pp. 1074, 1079, and cases cited; Hutchinson on Carriers, secs. 502, 529, and cases cited; Patterson on Railway Accident Law, sec. 247.
In Indianapolis & St. Louis Railroad Company v. Horst, 93 U. S., 291, which was an action against a railroad company for injuries received by the plaintiff while riding on a cattle train,, the court, after saying, “ the highest degree of carefulness and diligence is expressly exacted ” of railway companies, said: “ The terms in question do not mean all the care and diligence the human mind can conceive of, nor such as will render the transportation free from all possible peril, nor such as would drive the carrier from his business. It does not, for instance, require in respect to either passenger or freight trains, steel rails and iron or granite cross-ties because such ties are less liable to decay and hence safer than those of wood; nor upon freight trains air-brakes, bell-pulls and a brakemen upon every car; but it does emphatically require everything necessary to the security of the passenger upon either, and reasonably consistent with the business of the carrier, and the means of conveyance employed.”
Was appellant required to run separate passenger trains on its road? All carriers are not required to adopt a like expensive provision for the safety of passengers. The business of a road might render it unsafe to use a single track, and necessary to the safety of the passengers to use a double one. It would, unquestionably, be safer for all railroads to have two tracks and run all trains going in the same direction over the same track, but this does not make it the duty of all railroads to have double tracks. The provisions required to be adopted by passenger carriers for the safety of their passengers vary as the exigencies of the traffic and its remunerative character demand and justify. A railway constructed through a thinly-settled country, moving but little freight and few passengers, and running its trains at a slow rate of speed, cannot be expected to be equipped and operated in the same manner as is necessary in the case of a railway running through a densely populated territory, and moving a large volume of traffic. So the line of a railroad may be short and the business done by it so small as to make it unreasonable to require it to run separate trains for freight and passengers. If the business done does not warrant it, it would be unreasonable and oppressive to demand it, and it would not be required. But on the other hand, if the business was sufficiently large and profitable to warrant it, and the safety of the passengers was endangered of diminished by having the passenger coaches mixed in the same train with freight cars, it would clearly be the duty of the railway company to run separate trains.
If it was not the duty of appellant to run separate passenger trains, then, under the statutes of this State, it was its duty, in forming trains, to place the baggage and freight cars in front of the passenger coaches. (Mansf. Dig., sec. 5477.) Under such circumstances the law would not require bell-pulls and air-brakes to be used on such trains if it was impracticable to do so. But, on the other hand, if the rule as to care and diligence already laid down required them to be used, it was the duty of the appellant to have done so.
Another question is presented for our consideration. The statutes of this State provide that the court may require the jury “in any case in which they render a general verdict, to find specially upon particular questions of facts to be stated in writing,” and that “when the special findings of facts is inconsistent with the general verdict the former controls the latter, and the court may give judgment accordingly.” (Mansf, Dig., secs. 5142, 5143.) In pursuance of these statu tes the court propounded interrogatories and gave instructions to the jury, on motion of the appellant, as follows:
“ 1. Was the derailment of the coach in which plaintiff was a passenger caused by the insufficient skill and care of the defendant in constructing its road-bed ?
“ 2. Was the derailment of the coach in which plaintiff was a passenger caused by the want of skill and prudence of defendant in maintaining its road-bed?
“ 3. Was such derailment caused by the defect in the rolling stock in the defendant’s train or any of its appliances?
“4. Was such derailment caused by any negligence in operating such train ?
“ 5. If the jury find negligence in either case they will state in what said negligence consisted.
“6. If the jury find that after the derailment of the car the track was torn up and the ties broken, they will state whether the tearing up of the track and the breaking of the ties contributed to the injury of the plaintiff, and if so, in what way and to what extent.”
And against the objection of the defendant, instructed the jury as follows:
“If the jury find negligence and cannot agree what the particular negligence was which caused the derailment of the car, they may so state.”
“ If the jury find that the derailment was caused by a bent rail or spreading of the track, say so.”
To each of the interrogatories the jury responded : “We fail to agree,” and further said : “We find negligence on the part of the defendant, but fail to agree as to what particular neglect caused the derailment of the train.”
' The appellant contends that the court erred in instructing the jury that if they found that the appellant had been guilty of negligence, and could not agree as to what the negligence which caused the derailment was, they might so state; and insists, that beforé a verdict could have been legally re turned against it, there must have been an agreement of the minds of the twelve jurors as to the existence of some particular fact constituting negligence, and that they must have agreed on an affirmative answer to one of the interrogatories. The correctness of this contention depends on the evidence. It is not necessary that a jury, in order to find a verdict, should, in ail cases, concur in a single view of a transaction or occurrence disclosed by the evidence. If the verdict is sustained by any one of two or more interpretations of the evidence, it cannot be impeached by showing that a part of the jury proceeded upon one interpretation and a part upon the others. Murray v. New York Life Ins. Co., 96 N. Y., 614; Chicago & N. W. Ry. Co. v. Dunleavy, 22 N. E. Rep., 15. But if they must necessarily agree upon the answer to any particular question before they can find a verdict, they would be guilty of a violation of duty if they returned a general verdict without doing so. Ebersole v. Northern Central Railroad Co., 23 Hun., 114. If they should reply to such a question, to the effect they cannot agree, the court ought not to receive their verdict, as the reply and verdict, in that case, would be in irreconcilable conflict. As to the consistency of the verdict, and the answers of the jury to the interrogatories in this case, we express no opinion.
Reversed. | [
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Cockrill, C. J.
It is apparent that Mrs. Mellon was not entitled to have dower assigned to her out of the notes executed by Lester to her husband. Her right to dower was fixed by the law in force at her husband’s death. The statute governing the matter at that time did not give the widow an absolute right to dower in her deceased husband’s choses in action, but only in what was left after the payment of his debts. Acts of 1859, p. 299. The law was changed by act of March 8, 1867, so as to make her right of dower in such property superior to the claims of creditors. After the passage of the latter g.ct, Mrs. Mellon petitioned the Probate Court, where the administration of the estate of her deceased' husband was pending, to compel the administrator to assign her dower out of the Lester notes. The court granted the-prayer of her petition and the administrator appealed to the Circuit Court, where judgment was again rendered in favcr of the widow. The answer does not deny the validity of the judgment nor is it pretended that it has ever been reversed or set aside. We must then treat it as in force. It is the judgment of a superior court having jurisdiction of the subject matter and parties; and although the court which pronounced it erred in applying the act of 1867 to the assignment of the widow’s dower, the validity of the judgment cannot be questioned collaterally. It is, therefore, the insurmountable obstacle to what would otherwise appear to be a fair and just solution of this controversy.
The proof does not show a suspicion of intentional fraud on the part of the administrator. No part of the proceeds of the notes went actually into his hands. But the attorney whom he had empowered to collect them for the estate, converted what he had collected to his own use, and without previous authority from the Probate Court, assigned, in the administrator’s name, the residue of the judgment for their recovery, to a creditor of the estate in payment of his probated claim. The collection of the money by the attorney was in legal contem plation a collection by the administrator, and the latter made the assignment of the judgment his own act by adoption by reporting the fact to the Probate Court in the course of his administration, and obtaining its approval by that tribunal. The title to the judgment was thus vested in the creditor to whom it was assigned, and he was empowered to collect the amount due upon it as he did, thereby depriving Mrs. Mellon of the power to have dower assigned out of the notes (or the judgment into which they had merged) in pursuance of her judgment for dower.
The matter stands as though the full amount of the judgmeat rendered for the recovery of the notes had been collected by the administrator, and devoted wholly by him to purposes other than the satisfaction of the widow’s dower as fixed by her judgment against him. But personal property belonging to the estate out of which the widow is entitled to dower, is held by the administrator in trust for her, to the extent of her interest, (Menifee v. Menifee, 8 Ark., 9; Bob v. Powers, 19 ib., 440), and he becomes liable to her in his official capacity for the value of her interest, if he deprives her of the benefit of it. Howard v. Menifee, 5 Ark., 668, and cases snpra.
But, conceding that to be true, it is argued that the widow is debarred of enforcing her right in this case for several reasons. It is said that the attorney whose mismanagement appears to have involved the parties in this controversy, was the attorney of Mrs. Mellon. The answer so alleges, but the proof does not sustain the allegation. There is no proof to the point except what is found in Crowley’s deposition. He says that some time after the year 1871, before suit was instituted by him on the Lester notes, he agreed with Mrs. Mellon and one of the heirs cf Mellon’s estate to prosecute the suit with them for the benefit of all, the widow and heir to pay the expenses, and that he employed attorneys with that understanding. But Mrs. Mellon and the other party, he says, failed to comply with their agreement, and the suit was brought in his name alone, as administrator. He thereafter speaks of the attorney who conducted the suit as his attorney. He never thereafter recognized Mrs. Mellon’s right to dower in the notes, so far as the proof discloses, although her object, he says, in proposing to join him in the suit, was to collect her •dower interest. But on the contrary, while he was pressirtg the suit to collect the notes, he was resisting Mrs. Mellon’s suit to recover dower in them; and, although the former suit was pending for several years, it was determined before the widow succeeded in concluding her suit for dower. When the latter was heard and determined, the attorney had already collected a part of the judgment for the recovery of the notes and assigned the residue. But no defense appears to have been made in the suit for dower upon the ground that he was acting as the widow’s attorney. If it was, the judgment is conclusive that the question was determined against the administrator
Again, it is argued that Mrs. Mellon had accepted a conveyance in fee simple from the sole devisee of her husband’s lands in full of all dower. But that defense was interposed .against the widow’s right to dower in her petition for its assignment and was adjudicated against the administrator. That adjudication precludes further inquiry into the question.
It is further ar5gued that the judgment of the Probate approving the administrator’s settlement (which showed the disposition he had made of the judgment on the Lester notes), and discharging him from the trust, is a bar to this suit. But it is only persons whose rights are affected by an administrator’s settlement who are charged with notice of its filing and are bound by the judgment of confirmation. Jones v. Graham, 36 Ark., 401. The widow is not named as one of the parties required to except to his reports (Mans. Dig., sec. 128), for the obvious reason that she is not concerned in the administration. Her right is superior to that of creditors and independent of the administration. She cannot, therefore, be said to be a party to the probate proceedings; and orders made by the court, in the course of the administration, although made in reference to property out of which her dower is to be carved, are void as to her, like the judgments of other courts acting without the jurisdiction of the parties. Goodman v. Moore, 22 Ark., 196; Webb v Smith, 40 ib., 24; Hutchinson v. Lemcke, 107 Ind., 121; Dieffenderfer v. Eshleman, 113 Pa. St, 305. Nor did Mrs. Mellon’s petition to compel the administrator to assign her dower in the personalty make her a party to the administration. Her judgment for dower was upon its face the end of her litigation ; it left nothing open for further action ; it consummated her dower right and vested in her the legal title to the property described in it. When the term expired the judgment passed beyond the court’s power of interference. Thereaftei it could be set aside or annulled only in a superior tribunal, and the subsequent order of the Probate Court confirming the disposition the administrator had made of the judgment, had no more binding force upon the widow than have the orders of that tribunal upon any other stranger to its proceedings. As well might it be said, that one who is without knowledge that his property has been converted into assets by the administrator to be used in the payment of his decedent’s debts, is bound by an order of the Probate Court confirming the administrator’s disposition of it. But’in addition to this, there is nothing to indicate that the court intended to affect the widow’s interest by the order of confirmation. The administrator held a part of the judgment as assets of the estate; he reported that he had assigned it'to a creditor in payment of his probated claim; the questions of the widow’s dower and of her interest in the judgment were not presented to the court for adjudication. The order should therefore be limited as against the widow, so as to apply only to so much of the judgment as was assets in the administrator’s hands. Webb v. Smith, sup. In no view can it operate as a bar to the widow’s recovery.
In so far as the administrator has paid a debt of the estate with assets which he is compelled to refund to the widow, he will be subrogated to the rights of the creditor of his íate, and may resort to any remedy the creditor would have against the assets of the estate that remain unadministered. Finding no error, the decree is affirmed. | [
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Sandels, J.
It is objected by defendant county that the claim of Perry County was not authenticated, as required by the general statute in case of ordinary demands against counties. The special statute giving the right to sue upon this claim does not require it, and no principle of statutory construction makes it necessary. The only other question presented is-whether the act of 1885 is constitutional.
The power of the Legislature to alter and abolish counties ; to erect new corporations in the place of the old; to divide and dispose of the property held by counties; to charge portions of the debt of the old county upon that receiving its detached territory, is everywhere conceded, and nowhere more emphatically than in this State. Eagle v. Beard, 33 Ark., 497,. and cases there cited.
Upon general principles of law, if a part of the territory and inhabitants of a county be separated from it by annexation to another, or by the creation of a new county, the remaining part of the county retains all its property, and remains subject to all its obligations and duties. Laramie Co. v. Albany Co., 92 U. S., 307, and cases cited ; 100 U. S., 514.
The only debatable question is as to whether the act segregating the territory must impose such proportion of the debt of the old county upon the new one, or upon the county receiving the detached territory, as is equitable and just, or whether,, where such act is silent as to this, subsequent legislation may make the imposition. This has been ruled differently in the courts.
The earlier doctrine (still followed by some courts) was that the act detaching the territory must apportion the debt, and that it could not be subsequently taken from the old and imposed upon the new county. Hampshire v. Franklin, 16 Mass., 75; Bowdoinham v. Richmond, 6 Greenl., 112.
The better doctrine is, that the power of the Legislature to-impose the debt of the one county upon another, depending upon the existence of a moral obligation from the new county, or the county receiving new territory, to pay part of the old debt, the Legislature may so ordain whenever it finds the moral obligation to exist. Stone v. Bird, 16 Kan., 489; Creighton v. San Francisco, 42 Cal., 446; Layton v. New Orleans, 12 La. Ann., 515; Laramie County v. Albany County, 2 Otto, 307; Ly coming v. Union, 15 Pa. St., 166; Guilford v. Supervisors, 3 Kernan, 143; New Orleans v. Clark, 95 U. S., 654; 1 Dillon Municipal Corp., sec. 189.
The act in this case is less open to objection than those usually passed, since it makes Conway County liable for only such equitable proportion of the debt as can be established by legal evidence. The field is open to show, as against a proportion of the debt, the value of county property retained by the old county, and the equity of the imposition of any burden at all.
The demurrer should have been overruled.
Reverse and remand for further proceedings. | [
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Per Curiam.
The record fails to disclose that the special judge who presided at the trial of this cause, was ever elected for that purpose. The motion to dismiss the appeal will be granted. | [
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Per Curiam.
The appellant having failed to move the Circuit Court to dismiss the appeal for want of an affidavit for appeal, cannot be heard to raise the objection here. Wilson v. Dean, 10 Ark., 309; James v. Dyer, 31 Ark., 489.
There was no proof that the defendant held the cotton as security for payment of a lien upon it, as counsel argues-Without denying the plaintiff’s title, he undertook to prove that he held the cotton by virtue of an agreement made with the plaintiff to the effect that he should sell it, and out of the proceeds pay the residue of an account which he claimed the plaintiff owed him. The court properly instructed the jury that-the burden was on the defendant to prove the defense thus alleged. Nothing else is complained of.
Affirm. | [
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Per Curiam.
The act of March 18, 1887, provides a cumulative remedy, and does not repeal sec. 1865, Mansfield’s Digest.
The indictment is good under the latter act.
The remedy by indictment is appropriate. Texas & St. L, Ry. v. State, 41 Ark., 488; People v. N. Y. C. & H. R. R. Co. 74 New York, 302.
Affirmed. | [
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Battle, J.
Section 351 of Mansfield’s Digest provides that all municipal corporations shall have power “to regulate drumming or soliciting persons who arrive on trains or otherwise, for' hotels, boarding houses, bath houses or doctors,” and to license. such drummers, and to provide that each drummer shall wear a badge plainly exposed to view, showing for whom and for what he is drumming or soliciting patronage, and to punish by finé any violation of such provision. In pursuance of this section the council of the City of Fayetteville passed an ordinance forbidding all persons to drum or solicit patronage from persons who arrive on trains or otherwise, for any hotel or boarding house, without having first obtained a license to do so, and paid therefor the sum of $12.50, and making a violation thereof an offense punishable by fine. In a prosecution against appellee this ordinance, without any evidence of its invalidity except the ordinance itself, was held void, because the $12.50 was an unreasonable fee for the license.
The authority of a municipal corporation to pass an ordinance requiring solicitors of patronage for hotels and boarding houses to take out license and pay a reasonable fee therefor is conceded by both parties. The only question presented for our consideration is, is the fee fixed by the ordinance in question reasonable?
The power to license and regulate granted by the statute was conferred solely for police purposes; and municipal corporations have no right to use it as a means of increasing their revenues. They can require a reasonable fee to be paid for a license. The amount they have a right to demand for such fee depends upon the extent and expense of the municipal supervision made necessary by the business in the city or town where it is licensed. A fee sufficient-to cover the expense of issuing the license, and to pay the expenses which may be incurred in the enforcement of such police inspections or superintendence as may be lawfully exercised over the business, may be required. It is obvious that the actual amount necessary to meet such expenses cannot, in all cases, be ascertained in advance, and that “ it would be futile to require anything of the kind.” The result is, if the fee required is not plainly unreasonable, the courts ought not to interfere with the discretion exercised by the ■council in fixing it; and unless the contrary appears on the face •of the ordinance requiring it, or is established by proper evidence,” they should presume it to be reasonable. The City of Burlington v. the Putnam Ins. Co., 31 Iowa, 105, 106; Van Hook v. Selma, 70 Ala., 361; Van Baalan v. People, 40 Mich., 258; in re, Wan Yin, 22 Fed. Rep., 701; Johnson v. Philadelphia, 60 Pa. St., 445; ex parte Chin Yan, 60 Cal., 78; ex parte Gregory, 20 Texas App., 210; the Town of State Center v. Barenstein, 66 Iowa, 249; Fisher v. Harrisburg, 2 Grant's Cases, 291; St. Louis v. Weber, 41 Mo., 547; Carrigan v. Gage, 68 Mo., 541; the State, ex rel., etc., v. Gas Co., 37 Ohio St., 45; Clason v. Milwaukee, 30 Wis., 316. According to this rule we cannot say, and it does not appear, that the fee required in this case is unreasonable. The contrary is presumed.
Reversed and remanded for a new trial. | [
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Per Curiam:
County Prisoner contract for labor of. There was no theory upon which the convict could have been reqnired to labor twenty-four months- . . „ n , in satisfaction of a fine and costs amounting to $253.90, and the contract of the Sheriff with the defendant is therefore an unlawful attempt to deprive the convict of her liberty and for that reason is contrary to public policy and void.
The question of the liability of Stanley, for the services of the convict during such’ time as she may have been lawfully-detained, is not presented or decided.
Affirm. | [
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Per Curiam.
The judgment of the County Court was not an allowance against Desha County within the meaning of Section 51, Article 7, of the Constitution.
We are not called to decide whether B. F. Morgan might or might not have become a party to the proceeding in the County Court. It is sufficient to say that he made no effort to avail himself of the right, if it existed.
Not being a party to the proceeding, he could not appeal. Austin v. Crawford Co., 30 Ark., 578.
Reverse and remand with instructions to dismiss the appeal. | [
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Sandels, J.
The fourth ground of appellant’s motion for new trial challenged the correctness of the decision of the court in sustaining plaintiff’s demurrer to the second, third, and fourth paragraphs of his answer. Both the second and third paragraphs presented good defenses. The demurrer was. properly sustained to the fourth paragraph.
The fifth assignment of error is the admission of the testimony of J. O. Ducker as to the rendition of judgment in the Washington Circuit Court, the appeal by appellees to the Supreme Court, the reversal of said case in the Supreme Court,, the taxation of costs by the Clerk, etc. All of this was provable only by the record, unless it had been destroyed. There was no claim of that kind here.
The sixth assignment of error is the refusal to give instructions numbered one and two, asked by appellant. There was no error in refusing instruction No. 2. But instruction numbered one, correctly stated the law and should have been given The term “ costs ” has a known technical meaning, as well understood by lawyers as the.word “suit” or “prosecution.” The expression does not mean all the expenses incurred ; but it means expenses pending the suit, as allovoed or taxed by the court. Norwich v. Hyde, 7 Conn., 533. A court without jurisdiction of the subject matter of an action, cannot “allow or tax” costs incidental to such proceedings.
The Supreme Court had jurisdiction to hear and determine' the cause on appeal, and costs incurred there are legally taxable. Hightower v. Handlin & Venny, 27 Ark., 20.
Reverse and remand. | [
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Hughes, J.
This is an action to recover damages for the killing of a mule by the appellant’s engine.
The evidence for appellee tended to show that the mule was grazing upon the railroad track, and when the train approached within about one hundred and fifty feet of it, it ran down the track about seventy-five yards, and was struck by the engine and killed; that before it was struck the whistle was sounded several times, but that the speed of the train was not checked.
The evidence for the appellant tended to show that the engineer first saw the mule when it came on the track about one ^hundred and fifty feet ahead of the engine; that the engineer upon first seeing it, sounded the whistle and called for brakes, and that he was unable to check the train after he first saw it, •so as to prevent the engine from striking the mule; that he was keeping a close lookout at the time.
Verdict was given for plaintiff; a motion for new trial was overruled, and the railroad company excepted and-appealed.
The court by modifications of the instructions asked for by the appellant, charged the jury, in effect, that if the proof showed that the servants of the company in charge of the train at the time were negligent in keeping a careful lookout, the company was liable In L. R. & Ft. S. Ry. v. Holland, 40 Ark., 336, this court, by Judge Smith, said: “Ordinary care in the management of their trains is the measure of vigilance which the law exacts of railroad companies to avoid injury to domestic animals, and this means practically that the company’s servants are to use all reasonable efforts to avoid harming an animal, after it is discovered, or might by proper watchfulness, be discovered on or near the track.”
If the intimation supra, that a railroad company is liable, if the engineer in charge of the train when stock is injured, “ might, by proper watchfulness,” discover the animal on or near the railroad track in time to avoid injuring it, means that a railroad company owes to the owner of stock that stray upon its track a duty to keep a lookout to prevent injuring it, it states the rule too broadly.
In the Ry. Co. v. Kirksey, 48 Ark., 366, it is held that a railroad company owes no duty to the owner of stock which has strayed upon its track, except to use ordinary or reasonable care, at the time, to avoid injury to it, aud that the engineer is not bound to keep a lookout over the entire right-of-way and to apprehend danger when an animal is discovered upon it.
The question as to the duty of an engineer to keep a lookout for stock upon the track did not arise in the case.
Each case should be determined upon its peculiar circumstances.
The extent of the duty which a railroad company owes to-J . the owner of stock upon its track, is that the engineer in charge of the train at the time shall use ordinary or reasonable care,, after the stock is discovered by him, to prevent injury to it, and this negatives the idea that the engineer is bound to keep a lookout for stock.
Several States, among them Tennessee and Alabama, have by acts of their Legislatures altered the rule by making it the duty of the engineer to keep a lookout for stock.
There is an obligation due to others from railroad companies to preserve a strict lookout while running their trains, and as the agents of the company, in thfe absence of circumstances leading to a different conclusion are presumed to keep-such lookout, it is a fair inference of fact for the jury that á watchful agent will see stock on or near the track, and they will then determine whether he has used ordinary or reasonable care to prevent injury to it.
It is error for the court to instruct a jury that it is negligence for a railroad company to fail to keep a lookout for stock.
Reverse and remand. | [
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Per Curiam.
If Sanders and McGannon were partners, and the due bill in question was executed by one of them in the name of the partnership business as evidence of a partnership debt, it was the liability of both. No amendment of the plaintiff’s pleadings was necessary to authorize proof of the partnership. The court erred in excluding the testimony relating to that fact.
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Per Curiam.
The only bond taken by the Sheriff before executing the order of delivery in the replevin suit was signed by the plaintiffs m replevin alone. But the statute prescribes that the order shall not be executed by the officer until a bond to the defendant, with one or more sureties for the plaintiff, has been executed in his presence. Mansf. Dig., sec. 5575. If the officer executes the order without such bond, he becomes a trespasser, and is liable to the party injured, as such. Pirani v. Borden, 5 Ark., 89; State v. Stephens, 14 ib., 264.
The solvency of the plaintiff in replevin does not dispense with the necessity for one or more sureties, for that is a statutory requirement. See cases cited in Wells on Replevin, sec. 390.
The charge of the court was erroneous. Reverse the judgment and remand the cause for a new trial. | [
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Cockrill, C. J.
The Circuit Court found as a fact, that M. W. Edwards, as administrator of the estate of Thomas J. Edwards, deceased, had in his hands a sum of money realized from personal assets of the estate, at the time the Probate Court directed the payment of the widow’s dower; that the widow neglected for two years thereafter to collect what was due her; and, the administrator having died without accounting for the amount, held, that the widow lost her right by her laches; and declared that she was barred for the further reason that she was one of the sureties of the defaulting administrator, and could not claim indemnity out of the real assets of the estate, until she had discharged her liability arising by reason of her suretyship.
It is not necessary to examine the details of the facts disclosed by the record to ascertain if the conclusion reached by the court is that which the law pronounces upon the facts found, because there is a total want of legal evidence to prove the main fact which is the basis of the finding and judgment; that is, that the administrator was indebted to the estate when the judgment for dower was rendered, and at the time the petition herein was filed. The finding is based upon a judgment of the Miller Circuit Court in a suit to surcharge the administrator’s accounts, wherein the default is found and adjudged as the court in this case declared. But neither the defaulting administrator nor his administrator, nor any of the sureties upon the bond, was a party to that proceeding. Creditors of the estate of T. J. Edwards, deceased, were plaintiffs, the only defendant being the administrator de bonis non of the estate of Thomas J. Edwards. But he was not authorized to represent the bondsmen of the first administrator, nor to make a settlement for them, and the judgment against him was res inter alios acta and not binding upon them. It proved nothing against them. State v. Drake, ante, 350; 12 S. W. R., 706.
The judgment of the Probate Court settling the accounts of the administrator for whom Mrs. Edwards was surety, show ° nothing due from him, and until they are overturned in a court of equity, no liability rests upon his bondsmen.
If it be true, as recitals in the Probate Court records indicate, that the administrator (who before assignment of her dower in personalty, is trustee for the widow) applied the personalty to the payment of the debts of the estate without paying off her claim for dower, she is equitably entitled to be subrogated to the rights of the creditors, whose demands have thus been discharged, and to be reimbursed out of the real estate. Wells v. Fletcher, 17 Ark., 581.
Reverse the judgment and remand the cause for a new trial. | [
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Sandels, J.
The jiirisdiction of Probate Courts in the matter of sales of lands of deceased persons has often been the subject of investigation and decision by this court. It has often been held that the court is one of superior jurisdiction; that as such its judgments are proof against collateral attack ; and that all irregularities in the exercise of a jurisdiction once rightfully acquired, are cured by its final judgment. It is held that the court acquires jurisdiction of the res by the grant of administration, and that, upon the filing of a proper petition, the power to order a sale is absolute. It is in the exercise of this power that gross and palpable violations of the statute courteously called “irregularities” most frequently occur. The court being of superior jurisdiction, all presumptions are in favor of the propriety of its action, and ordinarily no relief is attainable against its judgments and orders except by appeal. But no one can appeal except he have himself made a party to the proceeding in the Probate Court. When an administrator desires to sell land, he is required to give notice by publication of his intended application. This is to enable persons interested to make themselves parties, contest the application, if they see proper, and appeal from the order, if adverse to them. Yet, it is held, that failure to give such notice is but an irregular step in the exercise of jurisdiction, and is cured by confirmation. So, it is required that publication be made of the time, place and terms of such sale when ordered; but failure to give such notice is held to be an irregularity which is cured by confirmation. Want of notice being but an irregularity, we are unable to see what additional “sanctity doth hedge about” a sale. The advantage of a ptiblic sale, when no one save the administrator knows the time when, or place where it will transpire, is not evident.
It is impossible upon principle to distinguish the question here presented from those so often decided heretofore; and in obedience to the settled doctrine of this court, fixing the character of the Probate Court, and the effect of its judgments, we hold that a private sale of land by an administrator, upon order of that court, is not void when confirmed.
In this particular case there were no bad results to the estate of Hall, from this method of sale. The land brought a good price, and the administrators appear, in all things, to have acted capably and in good faith. But upon the occasion of holding this manifest violation of the law lagalized by a subsequent order of confirmation, we think it proper to submit the following suggestions:
The construction put upon the constitutional and statutory powers of the Probate Court, has gone, we think, far beyond the intention of the framers of either Constitution or statute. The accretions of power, now far outweigh the original nucleus. But little further aggression is necessary to make the action of that court, in legal contemplation, infallible. This should not be. The specific powers granted these courts by law, pursued in the statutory method, are ample to accomplish the object of their being. The Probate Judges are not required to be, and usually are not, lawyers. In many instances they act without knowledge or consideration of the far-reaching effects of what they do. The most important interests, the guardianship of Widows, children and estates, are committed to their superintending care. Some possibly are dishonest, many are not wise or discriminating. Taking into account the magnitude of the property interests which they have in charge, these courts should be required to proceed in exact conformity to law, instead of being panoplied by the presumptions which attend the exercise of superior jurisdictions by other courts. When we see, day after day, the inheritance of infants squandered by the dishonesty or frittered away by the incompetency of administrators, and see these actions irrevocably legitimated by the approval of facile courts, we submit that it is time to call a halt.
The courts are now powerless. Former interpretations of the law have become rules of property, and cannot be overturned without uprooting the titles to one-fourth of the property of the State. But as to future transactions it is the power of the Legislature to place its prohibition upon the sins of omission and commission in administration, which now bankrupt the estates of the dead and send dependent widows to the workhouse.
We earnestly commend the subject to the attention of the law-making power.
Affirmed. | [
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Per Curiam.
Where there are no debts due by a decedent, there can be no sale of lands of his estate to pay the expenses an administration had thereon. If the admininistration is continued after the debts are paid, as in the case of Smiley v. Stewart, 46 Ark., 373, it would be error to order a sale of lands to pay the costs of the subsequent administration. To what extent the right to resort to the lands for the sole purpose of paying the expenses of administering the estate is limited, has not been fully argued by counsel, and is not now determined. In every case, however, where an application is made to sell lands solely for the expense of administering the estate, it must be made to appear that the expenses were incurred in the course of administering the estate to pay debts due personally by the decedent. Mansf. Dig., secs. 170 and 171. See cases cited at sec. 468, 2 Woerner Am. Law of Admrs.; 3 Wms. Ex.* 2041, N. A.
The cause was heard by the Circuit Court upon the administrator’s petition to sell, an exhibit thereto, and the remonstrance of the heir, without proof; and the essential fact referred to does not appear therefrom. The other questions argued by the appellant are not presented by the facts as set forth in the record.
For the error pointed out the judgment is reversed, and the cause remanded for further proceedings. | [
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Donald L. Corbin, Justice.
Appellant J.T. appeals the judgment of the Pulaski County Chancery Court terminating her parental rights to T.T., who is now thirteen years of age, pursuant to Ark. Code Ann. § 9-27-341 (Supp. 1995), and authorizing Appellee Arkansas Department of Human Services (“DHS”) to consent to the adoption of T.T. Appellant raises three points for reversal that necessarily involve our interpretation of section 9-27-341; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(17)(vi) (as amended by per curiam July 15, 1996). We find no error and affirm.
Facts and Procedural History
The duration of this case was approximately two years, during which time there were numerous hearings conducted before the chancery court. The evidence presented below reveals the following facts. On March 18, 1994, DHS filed a petition for emergency custody of T.T., asserting that the child was dependent-neglected as defined in Ark. Code Ann. § 9-27-303 (Repl. 1993). The affidavit attached to the petition reflected that T.T. was at risk for emotional abuse due to the fact that she was living with her mother in a shelter, that her mother had a history of running from shelter to shelter, state to state, and that T.T. was not attending school regularly. The affidavit particularly described two specific incidents which had occurred at T.T.’s school. On March 16, 1994, Appellant forced T.T. into school through the use of an armlock behind the child’s back and by pulling the child’s hair. When T.T. visited with the school counselor that same date, the child reported that she had experienced pictures in her head, that she had no memories of earlier times in her childhood, and that she had been in foster care when she was two years of age and had been sexually abused. On March 17, 1994, Appellant again accompanied T.T. to school where Appellant lost control, displaying disruptive behavior and loud cursing for approximately forty minutes. The affidavit also indicated that a psychiatrist at the Arkansas Children’s Hospital had diagnosed Appellant as being mentally ill, but that Appellant had not accepted services which would comply with prescribed treatment. Additionally, T.T. was exhibiting the same symptoms that Appellant had, such as delusions and paranoia. The order granting the emergency custody was filed on March 22, 1994.
After a hearing on April 22, 1994, and based on the stipulation of the parties that the allegations contained in the petition were true, T.T. was adjudicated dependent-neglected. The stated goal of the case was one of reunification of the family. In the meantime, T.T. was ordered to pursue residential treatment and to participate in family therapy with Appellant. Appellant was likewise ordered to seek treatment by receiving a psychological evaluation and following any recommendations for medication and treatment.
On August 31, 1995, DHS filed a petition to terminate Appellant’s parental rights. The petition stated that the minor child had resided outside the parental home for a period in excess of one year and, despite meaningful effort by DHS to rehabilitate the home and correct the conditions which caused removal, the conditions had not been remedied by Appellant to the extent that she was able to provide for the essential and basic needs, as well as the specific emotional needs, of T.T. Appellant responded to the petition by arguing that (1) DHS had violated the Americans with Disabilities Act by denying her visitation with T.T. and (2) the trial court had unlawfully delegated judicial authority by allowing visitation to be determined by what the child’s therapist recommended and by what the child desired.
After receiving testimony and other evidence during four separate hearings conducted on December 8, 1995, January 26, 1996, March 5, 1996, and March 15, 1996, the trial court entered an order terminating Appellant’s parental rights and authorizing DHS to consent to the adoption of T.T. This appeal followed.
Termination of Parental Rights
For her first point for reversal, Appellant argues that the trial court erred in finding clear and convincing evidence to terminate her parental rights. This court has stated that when the burden of proving a disputed fact in chancery is by clear and convincing evidence, the inquiry on appeal is whether the chancery court’s finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Clear and convincing evidence is defined as “that degree of proof which will produce in the factfinder a firm conviction as to the allegation sought to be established.” Id. at 637, 839 S.W.2d at 198. In making such determination, we must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id.
When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Id.; Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984). Termination of parental rights is an extreme remedy and is in derogation of the natural rights of the parents. Anderson, 310 Ark. 633, 839 S.W.2d 196. This is not to say, however, that parental rights should be allowed to continue to the detriment of the child’s welfare and best interests. In Burdette v. Dietz, 18 Ark. App. 107, 711 S.W.2d 178 (1986), the court of appeals held:
While we agree that the rights of natural parents are not to be passed over lightly, these rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children. Parental rights will not be enforced to the detriment or destruction of the health and well-being of the child.
Id. at 109, 711 S.W.2d at 180.
Section 9-27-341 provides for the termination of parental rights upon petition by DHS. Subsection (a) provides in part:
The intent of this section is to provide permanency in a juvenile’s life in all instances where return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare, and it appears from the evidence that return to the family home cannot be accomplished in a reasonable period of time.
Subsection (b) provides that an order terminating parental rights shall be based on a finding by clear and convincing evidence that it is in the best interest of the juvenile based upon one of the enumerated grounds, including a finding that the minor child has been adjudicated dependent-neglected, has been out of the home for twelve months, and, despite meaningful effort by DHS to rehabilitate the home and correct the conditions which caused removal, the conditions have not been remedied by the parent.
During the hearings conducted below, the following pertinent evidence was presented. T.T., who was eleven years of age at the time she testified, said she wanted to live with her foster mother because she had more of a normal fife and she felt safer there. She said she had a regular school to go to and that she was not afraid that she would have to move around again. She said she did not really have a normal fife when she lived with her mother, and that if she had to five with her mother again, it would not be good because her mother could not take care of her and would probably move again. She said her mother was hardly taking care of herself. She said that there were times when she was afraid while she was with her mother, and that sometimes her mother would “act like she was fighting a sumo wrestler or something.” She indicated that she was afraid that she would catch her mother’s disease, and that she knew for a fact that she could catch the disease because when she lived with her mother, she started acting like her mother. She said that she felt sad about her mother’s right to visit her in the future being taken away because she did not want to hurt her feelings. She indicated that she loved her mother and wanted to see her have a good fife, but that her visits with her mother made her feel uncomfortable. She said that even if her foster mother could not adopt her and DHS would have to look for another place for her, she would still want her mother’s parental rights taken away.
Catherine Chaumont, a therapist with the Centers for Youth and Families, testified that T.T. entered the children’s residential program at the Arkansas Children’s Hospital on June 6, 1994, and that she was initially diagnosed as having shared psychotic disorder for which she was hearing voices and having hallucinations. She described persons diagnosed with shared psychotic disorder as having a close relationship with someone who has a psychotic disorder and exhibiting those psychotic behaviors, which they are exposed to on a regular or long-term basis by the other person. She stated that, initially, T.T. was extremely oppositional and non-compliant, to the extent that she would not follow rules and, at times, she required restraints, physical holds, and closed-door seclusions in order to secure her safety and the safety of the staff and the other children. She indicated that T.T. was extremely fearful of her mother and that, initially, she had been very reluctant to have contact with her mother, even during family therapy sessions. She stated that by October 1995, T.T.’s diagnosis had changed to one of oppositional defiant disorder, a less severe diagnosis, which indicated that she was getting better. She indicated further that the relationship between Appellant and T.T. was improving and that there was a bond between them. She stated that there were, however, times when Appellant appeared to become very agitated by some of T.T.’s questions. In one recent session, when T.T. had continued to press for answers involving verification of her birth, Appellant’s tone of voice had escalated and she became short with the child. She stated that recently T.T. had become more aggressive and noncompliant, requiring physical holds on her, which she had not required since she had been discharged from residential treatment in 1994. She stated further that it was apparent that T.T. began decompensating in early February 1996, coinciding with the continuance of the court hearing on the petition to terminate Appellant’s parental rights.
Ms. Chaumont ultimately recommended that T.T. be placed for adoption and that Appellant’s parental rights be terminated. She indicated that, although Appellant had done everything that had been asked of her by the court, and although her relationship with T.T. had improved significantly, T.T. still required more than Appellant was able to provide. She stated that T.T. was a “high risk” child and that because of her high needs, Appellant would not be able to maintain the child and keep her stable. She stated that T.T. needed a structured environment and needed parents who would confront her, setting very firm limits on her behavior and being able to enforce those limits by resisting the child’s challenges, threats, and verbal abuse. She stated further that when T.T. is around Appellant, she exhibits characteristics of a parentified child, one who assumes the role of acting parent, showing more parenting skills than the mother and sometimes assuming charge of the household. She stated that no amount of training or classes would enable Appellant to meet the needs of T.T. She stated that T.T. needed closure to this situation and that the child was even at the point of trying to recruit potential parents to adopt her.
Gail Brown, Appellant’s therapist, testified that Appellant had been diagnosed as being alcohol dependent, having bipolar disorder, and being manic type. She stated that Appellant was at that time undergoing therapy and treatment by medication. She estimated that Appellant had a Global Assessment of Function score of 68, out of a possible 100. She stated that a normal functioning person would score somewhere in the 90s and that a score of 68 would put Appellant at a level of functioning with mild symptoms, some depressed mood or mild insomnia, some difficulty in social, occupational, or school functioning, but generally functioning pretty well and having some meaningful interpersonal relationships. She stated that Appellant would need to continue her therapy and take medication for the rest of her life. When asked if she thought T.T. should be returned to Appellant at that time, she stated that it would be best for Appellant that there be reunification with supervision through a gradual integration, involving visitation overnight and on weekends.
Dr. Nita Brown, a psychiatrist with the Centers for Youth and Families, testified that she had conducted a mental status examination on Appellant at the time T.T. was admitted to the Centers in June 1994. She stated she had observed Appellant having looseness of association, flight of ideas, and bizarre and para noid ideation. She stated that while she was conducting the examination, Appellant became increasingly agitated, such that Dr. Brown terminated the session when Appellant physically approached Ms. Chaumont in a threatening manner. She stated that T.T. had expressed some fears of her mother and that the child had indicated that her mother had told her that people were trying to kill her (T.T.) or trying to electrocute her. Pertaining to Appellant’s mental condition, Dr. Brown described bipolar disorder as a mood disorder in which a person experiences mental states varying from manic, to psychotic, to depressed. During the manic moods, Dr. Brown stated, the person begins to have poor judgment and can become paranoid and have delusional and bizarre ideas. She stated further that bipolar disorder is a highly variable disease, at times affecting the person’s life only minimally, and other times affecting the person to a point where she is totally incapacitated. She stated that T.T.’s emotional requirements are such that she needs an extremely stable environment, which could not be adequately provided by Appellant because the course of the bipolar illness is characterized by ups and downs and by periods of deterioration. She stated further that, in her opinion, no amount of parenting classes or education could enable Appellant to give T.T. the stability she needs.
Appellant testified at the December 8, 1995 hearing that T.T. should be returned to her custody “eventually,” after they had more therapy and visitation. She stated that she was asking the court to give her more help and more parenting classes. At the January 26, 1996 hearing, Appellant again expressed a desire to have more therapy before she would be ready to take custody of T.T. She stated that she did not think it was a good idea for T.T. to come home with her at that time. She stated that she felt they needed to spend more time together, perhaps in the form of weekend visits, before she took custody of the child. She stated that she knew what it meant when the therapists referred to T.T. being oppositional and that she would deal with that behavior by taking additional classes. Appellant also indicated that she was not working and that she was currently in a relationship with a man who was an alcoholic and who had not stopped drinking. It was further deduced over the course of the hearings that Appellant had had several relapses with alcohol, the most recent occurring in October 1995.
In making the determination to terminate Appellant’s parental rights, the trial court stated:
The Court finds that the mother’s mental illness was a factor that caused the child to enter foster care. The Court further finds that the mother has had consistant [sic] treatment for her mental illness and will need continued treatment for the rest of her life. The child has had some psychiatric difficulties also and has improved since entering foster care. However, the Court cannot close its eyes to the fact that it must do what is in the best interest of [T.T.] who is entering adolescence, is parentified, and needs a parent or care giver who can be confrontive and set limits, be resistant to challenges, threats, and verbal abuse that this child can exhibit. This child also needs to definitely know what is going to happen in her life. The Court notes that this case had been ongoing and that now is the time to make a permanent plan for the child. Ms. Chaumont, the child’s Therapist, testified last week that the child in the past several weeks has become markedly non-compliant and that school grades have plummeted, and that the child needs closure on this issue. The Court finds that the mother is unable to be the type of parent that this child needs and she is not able to learn how to be that parent. The Court notes that this is sad because the mother loves the child and has really tried to do what is required, but it has not yet transpired. The Court finds that long-term foster care is not appropriate for this child. This child is adoptable and, according to Ms. Chaumont, is very adoptable. [Emphasis added.]
We conclude that the finding of the trial court that Appellant does not have the capacity to be the type of parent T.T. needs was not clearly erroneous, in light of the testimony provided by Catherine Chaumont, Gail Brown, and Dr. Nita Brown, along with Appellant’s concession that she was not yet ready to take care of T.T. on a permanent basis. The foregoing evidence demonstrates that the trial court’s decision to terminate Appellant’s parental rights is supported by clear and convincing evidence and that such decision was in the best interest of the child.
Appellant additionally challenges the trial court’s ruling on the ground that the court made no finding of her unfitness as a parent. Appellant relies on Quilloin v. Walcott, 434 U.S. 246 (1978), in support of her assertion that there must be a showing of a parent’s unfitness before the parental rights may be terminated on the basis of what is in the best interest of the child. While we agree with Appellant that a proceeding to terminate parental rights is a two-step process, requiring the trial court to find (1) the parent unfit and (2) that termination of the parent’s rights is in the best interest of the child, we do not agree with her contention that the trial court here did not make a finding that Appellant was unfit. Although the trial court did not actually use the word “unfit,” the court clearly made a finding that Appellant was unable to be the type of parent that T.T. needs and that she is not able to learn how to be that parent. We conclude that such a determination by the trial court is a sufficient finding of Appellant’s unfitness, and that such finding is supported by clear and convincing evidence.
Americans with Disabilities Act
For her next point for reversal, Appellant makes two arguments involving the Americans with Disabilities Act (“ADA”). Appellant first argues that she was denied visitation with T.T. on the basis of her mental disability and that reasonable accommodations should have been made by DHS to provide visitation services to her, pursuant to section 9-27-341 (b)(2)(E) and the ADA. She next argues that it was error for Dr. Nita Brown to have denied her access to T.T. on the ground that she posed a threat to the child or Ms. Chaumont without first having conducted an individualized assessment of the severity and duration of any risk posed by her. She contends this was also done in violation of the ADA.
The trial court found that DHS had not violated the provisions of the ADA because any denial of visitation was not based on the fact that Appellant had a mental disability, but rather, on the mental and emotional state of T.T. The court stated that Appellant’s mental disability was a factor considered by the court, but only to the extent that the disability affected the child in a detrimental way. The court noted that it had in the past issued similar restrictions on visitation in cases where the parents had no identi fiable disability, and also, that there had been cases when such restrictions were not necessary and where the parental rights were not terminated even though the parent had a disability such as mental illness.
Appellant has presented no direct authority to support her contention that DHS discriminated against her or failed to provide any services to her or make reasonable accommodations for her. Instead, Appellant merely relies on section 9-27-341 (b)(2)(E)(ii), which provides that DHS will make “reasonable accommodations” in accordance with the ADA in order to allow meaningful access to reunification and family preservation services. For the reasons outlined below, we affirm the trial court’s ruling.
The ADA provides in pertinent part that, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (1994). Whether an individual has been denied the services of a public entity by reason of the individual’s disability is an issue of first impression in this court. We thus look to decisions from other jurisdictions for guidance.
In In re Torrance P., 522 N.W.2d 243 (Wis. Ct. App. 1994), the Wisconsin Court of Appeals determined that the inquiry of whether the father’s rights under the ADA had been violated was separate from and unrelated to the issue of whether the trial court erred in terminating the father’s parental rights. The court explained that Congress enacted the ADA to efiminate discrimination against persons with disabilities and to create causes of action for those persons, but Congress did not intend to change the obligations imposed by unrelated statutes, such as the Wisconsin statute requiring DHS to make a “diligent effort” to provide court-ordered services to persons involved in an action for termination of parental rights. The court stated that while the father’s developmental disability “must be considered in determining the reasonableness of the County’s efforts, neither his disability nor the ADA changes the inquiry or the County’s burden of proof” under the relevant Wisconsin statute. Id. at 245-46. The court con- eluded that any cause of action the father may have had under the ADA was pursuable under a separate cause of action, but that such a claim could not be the basis for an attack on an order terminating parental rights.
In In re CM., 526 N.W.2d 562 (Iowa Ct. App. 1994), the Iowa Court of Appeals passed over the issue of whether the ADA could be used as a ground for reversal of an order terminating parental rights. The court ultimately ruled that the issue was procedurally barred because it had not been raised below, although it did address the merits of the claim in the alternative by stating that reasonable accommodations had been made by DHS in that the mother had been provided with a lengthy list of services including those which accommodated her personality disorder.
More recently, in Stone v. Daviess County Div. Child Servs., 656 N.E.2d 824 (Ind. Ct. App. 1995), the Indiana Court of Appeals addressed a situation more closely akin to that in the present case, in that both parents and the children displayed mental, emotional, and psychological problems. The court initially determined that because Indiana statutes did not require that services be provided to any parents in proceedings to terminate parental rights, the requirements of the ADA were not applicable. The court nonetheless addressed the merits of the parents’ claim because the public entity had, in that case, elected to provide services. In its review of the claim, the court recognized that all that was required under the ADA was that the public entity reasonably accommodate a parent’s disability. The court stated that, “[i]n the final analysis, the rights of the parents under the Fourteenth Amendment and the ADA must be subordinated to the protected rights of the children.” Id. at 831. The court concluded that the services provided to the parents had been sufficiently tailored to meet their disabilities, but that the most significant factor that had not been remedied was the parents’ denial that there had ever been any inadequacy in the care of their children. The court thus determined that any additional services would not have cured the parents’ denial or their chronic parenting deficiencies.
Section 9-27-341 (b)(2) (A) requires a “meaningful effort” by DHS to rehabilitate the home and correct the condi tions which caused the removal of the child as dependent-neglected. Subsections (b)(2)(E)(i) & (ii) provide that in the event termination of parental rights is based upon factors which arose subsequent to the original dependency-neglect petition, DHS shall make “reasonable accommodations” in accordance with the ADA to parents with disabilities in order to allow them meaningful access to reunification and family preservation services.
Assuming arguendo that the trial court based its decision to terminate Appellant’s parental rights on any such subsequent factors, the pertinent inquiry is whether DHS provided “reasonable accommodations” to Appellant to allow her a meaningful access to reunification services. Such accommodations were made in this case, in the form of providing Appellant with a mental evaluation, therapists, and prescribed medication for her mental illness, as well as access to family therapy, parenting classes, Alcoholics Anonymous sessions, transportation, and various casework services. Appellant was additionally provided general visitation with T.T., and was only denied that visitation when it became detrimental to the child. In that respect, we agree with the reasoning espoused by the Indiana Court of Appeals that the parent’s rights under the ADA must be subordinated to the protected rights of the child. Such reasoning is consistent with the General Assembly’s mandate that all juvenile court proceedings be viewed in terms of what is in the best interest of the child. See Ark. Code Ann. § 9-27-102 (Supp. 1995). We thus find no merit to this point.
Similarly, we find no merit to Appellant’s second contention that it was error for Dr. Brown to deny her access to her daughter without making an individualized assessment of the risk posed by Appellant. In support of this contention, Appellant relies heavily on School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987). That case dealt with the issue of whether a teacher, who had been denied certification because she had tuberculosis, posed a threat to the general public if she were allowed to continue teaching. The Supreme Court held that in order to determine whether a person handicapped by a contagious disease is “otherwise qualified” to do the job, the trial court must conduct an individualized inquiry and make appropriate findings of fact based upon medical knowledge about the nature, duration, and severity of the risk posed to the general public. The holding in that case is thus inapplicable here because Appellant is not handicapped by a contagious disease and it was not alleged that she posed a threat to the general public. The sole concern here was whether it was in T.T.’s best interest to have contact with her mother at that particular stage in the child’s therapy.
We thus conclude that Appellant has failed to demonstrate that her rights pursuant to the ADA were violated by either DHS, Dr. Brown, or the trial court. Appellant was not denied any services on the basis of her mental disability; rather, the trial court’s denial of visitation with T.T. was motivated solely by what the court deemed was in the best interest of the emotionally fragile child. We further conclude that even if DHS had failed to make reasonable accommodations for Appellant’s disability, such failure would not negate the trial court’s decision to terminate Appellant’s parental rights.
Delegation of Judicial Authority
For her last point for reversal, Appellant argues that the trial court erred in allowing the therapists and the minor child to decide whether or not visitation or family therapy would occur. She asserts that the lack of regular visitation with her daughter and the failure to provide family therapy in a timely manner had “dire consequences” for her. Appellant does not attempt to explain what those particular consequences were, nor does she offer any convincing authority or argument in support of reversal on this point, which appears to be little more than an alternative attack on the trial court’s decision to deny her visitation with her daughter.
For the reasons discussed in the preceding section, we conclude there was no unlawful delegation of judicial authority by the trial court, as the visitation was only denied during those periods of time that the court and the child’s therapists determined such contact would be detrimental to the child. We are persuaded by the trial court’s well-reasoned determination that therapists and caseworkers must be allowed some discretion in carrying out the orders of the court in cases where a child’s emotional, mental, or physical health is at stake. Furthermore, because we have determined there was clear and convincing evidence presented indicating that Appellant lacked the capacity or ability to care for T.T., the issue of whether Appellant was denied regular visitation with her daughter is moot.
Affirmed.
Thornton, J., dissents. | [
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Per Curiam.
Melvin Griffin, by his attorney, has filed a motion for rule on the clerk. His attorney, Claudell Woods, admits in his’motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is therefore granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Wood, J.,
(after stating the facts). The filing of the affidavit and bond for appeal by the appellees was such a substantial act as to constitute an appearance to the proceedings, and gave the circuit court jurisdiction of the persons of appellees on appeal. See Holloway v. Holloway, 85 Ark. 431; St Louis, I. M. & S. Ry. Co. v. State, 68 Ark. 561; Silver v. Luck, 42 Ark. 268. The perfecting of the appeal from the justice of the peace gave the circuit court jurisdiction of the cause. Harrison v. Trader, 29 Ark. 85, 97. In the circuit court on appeal from the justice’s court, the cause is tried de novo, on its merits. The appellees could not object in the circuit court, on appeal from the justice’s court, to the want of service of summons in the latter court. Kansas City, S. & M. Rd. v. Summers, 45 Ark. 295; Hopkins v. Harper, 46 Ark. 251.
It was the duty of the justice of the peace, bn or before the first day of the next term of the circuit court after the appeal had been allowed by him, to file in the office of the circuit clerk a transcript of his docket entries and the process and papers in the suit. Section 4670, Kirby’s Dig. It was the duty of appellees here to see that the transcript was lodged with the circuit clerk as the law requires, and upon failure to do so it was in the discretion of the circuit court to dismiss the appeal or affirm the cause for the failure to prosecute. Wilson v. Stark, 48 Ark. 73; Smith v. Allen, 31 Ark. 268; McGehee v. Carroll, 31 Ark. 550; Hughes v. Wheat, 32 Ark. 292.
It was to call forth this discretion of the court that appellant filed the transcript from the justice docket, and moved for an affirmance of judgment of the justice. He. was entitled to the relief asked. Wilson v. Stark, supra.
The court erred in rendering judgment for the appellees. The judgment is therefore reversed, and judgment is rendered here in favor of appellant against appellee for the amount of the judgment of the justice of the peace, with interest thereon from the day of its rendition. | [
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Hill, C. J.
An action was brought in the name of Bodenheimer, Landau & Company, a firm of St. Louis merchants, against Robert Liddell, sheriff of Clay County, before a justice of the peace, to recover possession of certain personal property. The plaintiffs recovered, and the defendant appealed to the circuit court. In the circuit court a question was raised as to the authority of the action being instituted in the name of Bodenheimer, Landau & Company, and it was decided that the action was unauthorized, and they were dismissed from it, and S'. D. Hawkins was substituted as plaintiff, and it was ordered'that the action proceed in his name. By oversight this order was not entered of record. At a subsequent term of the Clay Circuí Court, the case remaining upon the docket, the order of dismissal having been overlooked, judgment by default was rendered against Bodenheimer, Landau & Company in favor of Robert Liddell, the defendant, for the value of the property in controversy and the costs of the action. Some time thereafter various writs of garnishment were issued upon this judgment.
These garnishments brought the first knowledge to Bodenheimer, Landau & Company that the judgment had been rendered against them, and immediately they filed a petition in the circuit court, setting forth the facts, and asked that the order of dismissal which was omitted from the record be entered nunc pro tunc. An agreement was reached between the parties by which Bodenheimer, Landau & Company, in consideration of the dismissal of the garnishments, agreed to pay the judgment, in-> terest and costs in the event the motion to correct the judgment was not sustained and the judgment should not finally be held void. This bond will be found set out in full in the footnote
The court made correction of the record by entering the order of dismissal nunc pro tunc, and also ordered that the judgment in favor of Liddell against Bodenheimer, Landau & Company be corrected so as to be against Hawkins and to show that Bodenheimer, Landau . & Company were not parties thereto. From this judgment Liddell appealed, and this court on the 7th of April, 1906, affirmed 'the judgment, in so far as it inserted the omitted record showing a dismissal of Bodenheimer, Landau & Company from the suit, but reversed it in so far as it corrected the judgment, so as to make it against Hawkins, instead of against Bodenheimer, Landau & Company. The court said of 'the action of the circuit court: “It had no authority to set aside or modify a judgment after the term at which it was rendered has expired, on application for nunc pro tunc order.” Liddell v. Bodenheimer, 78 Ark. 364.
After this decision, Liddell brought suit on the bond, these facts were fully developed in the trial, and the court held that there was no liability upon the bond; and from that judgment Liddell has appealed.
The authority of a court to amend a record by nunc pro tunc order is to make it speak the truth. Bobo v. State, 40 Ark. 224. This power can never be used to make the record speak what it should have spoken but what it did not in fact speak; and such is the effect of the decision in Liddell v. Bodenheimer, supra.
The only question is, whether the judgment by default entered against Bodenheimer, Landau & Company in favor of Lid-dell at a term subsequent to the one in which they had been dismissed from court is void. The Supreme Court of the United States, whose decisions upon questions as to due process of law -are conclusive on the State courts, had this precise question before it, and exhaustively reviewed the authorities upon it, concluding as follows:
“To sanction a proceeding rendering a new judgment without notice at a subsequent term, and hold that it is a judgment rendered with jurisdiction and binding when set up elsewhere, would be to violate the fundamental principles of due process of law, as we understand them, and do violence to that requirement of every system of enlightened jurisprudence which judges after it hears and condemns only after a party has had an opportunity to present his defense. By the amendment and new judgment the proceedings are given an effect against the defendant in error which they did not have when he was discharged from them by the judgment of dismissal. By the judgment of dismissal the court lost jurisdiction of the cause and of the person of the defendant. A new judgment in personam could not be rendered against the defendant until by voluntary appearance or due services of process the court had again acquired jurisdiction over him. As a matter of common right, before such action could be taken, he should have an opportunity to be heard and present objections to the rendition of a new judgment, if such existed.” Wetmore v. Kerrick, 205 U. S. 141.
It necessarily follows that the judgment at a term after Bodenheimer, Landau & Company had been dismissed from court, without further notice, was void as contrary to due process of law. There is no room for indulgence in presumptions of the regularity of the proceedings, for the facts are clearly established by parol and record evidence.
The judgment is affirmed.
The bond sued on, omitting the caption, is as follows:
“In consideration of the defendant, Robert Liddell (appellant), dismissing the garnishments in the above-entitled cause, we, Alexander Landau and Louis Landau, partners under the firm name of Landau & Co., as principals, and G. Richter, as surety, hereby agree and undertake that we will pay to the said defendant the amount of the judgment, interest, and costs rendered in the above-entitled cause, upon this express condition: That, should the'circuit court of Clay County for the Eastern District, or the Supreme Court upon appeal, refuse to sustain a motion filed for the purpose of correcting an alleged error in said judgment, to the effect that said judgment against said plaintiffs is absolutely void, and refuse to hold that said judgment is void, then we will pav said defendant the amount of said judgment, interest and costs; but, should the said circuit court, or the Supreme Court on appeal, hold that said judgment is void, and the plaintiffs are, therefore, not liable, then this obligation shall be void.
[Signed] “Louis Landau.
“Alex Landau.
“G. Richter.” | [
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Wood, J.,
(after stating the facts). In the absence of a warrant drawn :by the directors of the district on the appellee as treasurer for the payment of the judgment that had been rendered against the school district, he would have no authority to pay same. It is the duty of the directors to draw orders on the treasurer, and they shall state in every such order the services or consideration for which the order was drawn. Section 7627, Kirby’s'Digest. “When the warrant of any board of directors, properly drawn, is presented to the treasurer of the proper county, he shall pay the same out of any funds in his hands for that purpose belonging to the district specified in said warrant.” Section 7628, Kirby’s Digest. The petition does not show that any warrant had ever been drawn by the directors of School District No. 16 on the appellee as treasurer of the county for the payment of the judgment which the petition alleges, and the demurrer admits, had been obtained against the district. The petition does not show that any such warrant had been presented to appellee, and that he had refused its payment. It is clear, therefore, that no cause of action for mandamus against appellee is stated in the petition. The warrant set forth in the petition, as the latter alleges, had been used as the basis for and was therefore merged in the judgment. The remedy, if any, is for mandamus to compel the directors to issue warrant for the payment of the judgment; but that case is not before us, and we express no opinion concerning it.
The judgment is affirmed. | [
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Pbr Curiam.
This is a stipulation purporting to be an amendment of the record under Rule XXV. The stipulation does not show affirmatively that all matters omitted from the transcript were in fact in the record. Before the transcript can be cured by amendment under this rule, it must affirmatively appear that the omitted matter, or amended matter, was in the record in the lower court as thus agreed upon, and that the omission is merely from the transcript, and not from the record. To hold otherwise would be to permit parties to make up a case which was not the case tried in the lower court, which .is never tolerable. This rule is intended, and it plainly shows its in tention in its language, to enable parties to amend transcripts of the record so as to make them speak the truth, in order to save them the trouble, delay and expense of having transcripts returned to the clerks of the trial courts and the omitted or erroneous matter there corrected.
It maybe that the matters sought to be corrected by this stipulation are within the rule, but the stipulation fails to make that clear, and for that reason the record is not now amended. The stipulation is returned to the parties with the privilege of renewing it when in conformity to Rule XXV. | [
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Hir®, C. J.
Aeree ran a hack between Maynard and Pocahontas, arriving each day at Pocahontas about eleven o’clock in the forenoon and departing at about one o’clock in the afternoon. He had two teams and alternated in the use of the same, leaving one in the livery stable of Bigger at Pocahontas while he was using the other. Pittman was hostler for Bigger, and was m charge of the stable. When Aeree came in each day, he tied the horses in the stalls himself or Pittman did so. At the time in question, Aeree brought in his team and tied them in their stalls himself. In the afternoon of that day, Pittman took the team out tr/ water them, and returned them to the stable and tied them in the same manner that Aeree had tied them. In 'the night Pittman heard a noise, and going in the stable found that one of Acree’s horses was loose and standing in another stall. He tied it in that stall with the same rope that it had been previously tied with in the other stall. He did not at that time discover that the horse was injured; but the next morning he discovered that it had been hurt, apparently kicked on the leg, and he felt sure it had been kicked by its mate, as it was the only-other horse in the stable. He and Aeree treated’ the horse for .several days, when it died. Aeree brought suit against Bigger for the value of the horse, alleging that it had been injured, and • died as a result thereof, thrgugh the negligence of Bigger in permitting the horse to run loose in the stable among other horses confined therein, as a result of which it had been kicked and injured, from which injuries it died. Bigger denied negligence, and the case was tried upon this issue, resulting in a verdict for Aeree; and Bigger has appealed.
The only testimony as to the care of the animal was that of Pittman, called by the plaintiff. He testified that he tied the mare in the stall with the same rope and in the same manner that the owner had tied it earlier in the same day, and that this was the usual way that it had been tied theretofore; that this mare had been in the habit of breaking loose at. night, and he used a small rope with which 'to tie her, for the reason that if a larger rope had been used she might have broken her neck or choked herself to death. That he had not tied a rope or chain at the rear of the stall to prevent her from backing out for the reason that he did not think it necessary, nor was it customary in the livery business — with which business he testified he was familiar. The rope with which she was tied was either half-inch or three-quarter inch rope, and was sufficient to hold any ordinary animal.
A livery stable keeper for hire'is required to use ordinary care of the animals committed to his charge. And he is liable for the injuries to horses placed in his charge when, and only when, such injuries are occasioned by negligence on his part. “The ordinary care required, according 'to the familiar definition, is that degree of care which a person of ordinary prudence would take of the property, under the same circumstances, if it were his own.” 19 Am. & Eng. Enc. 432. See, also, where the same principles were announced: Swann v. Brown, 51 N. C. 150, s. c. 72 Am. Dec. 568; Weick v. Dougherty, 90 S. W. 966, s. c. 3 L. R. A., N. S. 348 and note; Adams v. Cost, 62 Md. 264; Hunter v. Ricke, 127 Ia. 108; 25 Cyc. 1512.
In the case of Lockridge v. Fesler, 37 S. W. 65, the Court of Appeals of Kentucky had before it a case quite similar to this one. A horse, entrusted to a livery stable, had slipped his halter and escaped, and was killed. The defense was that the horse was hitched in the usual and customary manner in the stable; that the owner saw 'the manner in which the horse was hitched ■and placed, and did not object thereto; and that the horse was properly hitched, but, being breachy and restless, slipped its halter .and escaped, without any carelessness or negligence on 'the part of the defendant or his employees. It was held that these facts constituted a defense.
This case cannot be distinguished from that one, and the principle of it is correct and in consonance with all the authorities on-the subject. Under the undisputed evidence in the case, the horse was cared for in the usual and customary manner of caring for horses in livery stables; and in the same manner that the owner cared for this horse in this stable. To hold the livery keeper liable under this evidence would be to make him an insurer of the safety of animals in his stable, and that is not the law.
Judgment reversed and cause remanded.
Mr. Justice Wood is also of opinion that the evidence is insufficient to show that the death of the animal resulted from the injury received. | [
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Wood, J.
Appellee contends that her father, at the time the will was executed, was under the insane delusion “that she did not love him, did not love him as a daughter should, or love him as well as she loved other persons with whom she was intimately associated, and that she was ungrateful for and unappreciative of the great love and care that he had bestowed on her.”
Appellants contend that Dr. Taylor was sane when he executed his will, and that its provision discriminating against appellee was because of her marriage.
Conceding that the evidence tended to support the respective contentions, we will consider the law applicable to such cases, and then apply it to the instructions in the case at bar.
I. The test of testamentary capacity, as declared by this court, is that the testator shall have capacity “to retain in memory, without prompting,' the extent and condition of his property, and comprehend to whom he was giving it, and be capable of appreciating the deserts and relations to him of others whom he excluded from participation in the estate,” McCulloch v. Campbell, 49 Ark. 367; Ouachita Baptist College v. Scott, 64 Ark. 349. This rule is supported - by the weight óf authority. 1 Wharton & Stille, Med. Jurisprudence, § 67 and note ; 1 Clevenger, Med. Jurisprudence of Insanity, § 287 and note 1.
The test relates, not to the moral quality of the act done, but to the mental capacity -of the testator to do what he did. The question is, not whether the testator did actually appreciate the deserts of and relation to him of the one excluded, but whether he had, at the time, the capacity to do so. “It is not required that he shall in fact correctly ascertain the legal status of each person who apparently -stands in natural relation to him. In the exercise of reason, he may move upon false or insufficient evidence, or by mistake of law, and thus exclude from his bounty those whom, but for this error, he would have recognized. Stupid error, either in his reasoning or conclusion, is not lack of testamentary capacity.” Smith v. Smith, 48 N. J. Eq. 566; 1 Wharton & Stille, Med. Jur. § 767, p. 73.
There is a clear distinction between having the capacity to comprehend deserts and actually comprehending them — the former the law requires, the latter it does not. Jurors, in their desire to “even up” what may seem to them the gross inequalities of a will, are apt to take -the one for the other, and treat them as' convertible terms. Care, therefore,, should be taken by the courts to see that the distinction mentioned- is observed,for it is precisely the one that public policy dictates and the law requires in order to preserve the right and power of testamentary disposition. Greenwood v. Greenwood, 3 Curteis, 337; In re McDevitt’s Case, 30 Pac. 101; King v. Rowan, 34 So. (Miss.) 327; Riggs v. Am. Tract Soc., 95 N. Y. 511.
Every man has the untrammeled right to dispose of his property by will as he pleases, with only such limitations as the statute may impose. The “English law,” said Eord Chief Justice Cockburn, “leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances caprice or passion, or the power of new ties, may lead to the neglect of claims that ought to be attended to, yet the instincts, affections and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of. the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a disposition- prescribed by the stereotyped and inflexible rule of general law.” Banks v. Goodfellow, L. R. 5 Q. B. 549.
Therefore, nothing short of mental unsoundness, when measured by the test above announced, will avoid a will. Moral, or what the books term “medical,” insanity — a perversion of the sentiments and affections — manifested in jealousy, anger, hate or resentment, however violent and unnatural, will not defeat a will unless the emanation of a delusion. Lucas v. Parsons, 24 Ga. 640; Schouler on Wills, 162, 163; Wharton & Stille, Med. Jur. 78; 16 Am. & Eng. Enc. (2d Ed.) 563; McClintock v. Curd, 32 Mo. 411-421, 422; Frere v. Peacocke, 1 Robertson, Eccl. Cas. 448; Bohler v. Hicks, 48 S. E. 307; Boardman v. Woodman, 47 N. H. 120; In re Forman’s Will, 54 Barb. 274; 3 Witthaus & Becker’s Med. Jur. 183.
“Testators are not required by law to mete out equal and exact justice to all expectant relations in the disposition of their estates by will, and the motives of partiality, affection or resentment, by which they naturally may be influenced, are not subject to examination and review by the courts.” Barricklow v. Stewart, 72 N. E. 128; Clapp v. Fullerton, 34 N. Y. 190. If one has the capacity indicated to make a will, then he may make it as “eccentric, injudicious and unjust as caprice, frivolity or revenge can dictate.” Schneider v. Vosburgh, 106 N. W. (Mich.) 1130; In re Spencer’s Estate, 31 Pac. 454; Rivard v. Rivard, 66 N. W. 681.
Still, “mind is represented by feeling, thought, and volition, and any departure in these from their normal relations” tends to show mental disorder. 3 Witthaus & Becker’s Med. Jur. 182. Therefore, when the mental capacity of a testator to make a will with reference to a particular individual is questioned, it is always proper to show the state of his feelings and thoughts, as manifested by his words and acts towards such individuals, and indeed generally, in so far as these tend to prove mental capacity, or the lack of it, in making the will, and whether the testator at the time was dominated by delusions concerning the individual that caused him to make it. Hence it is that, in order to determine the capacity of the testator’s mind and its true action at the time the will is made, a wide range of inquiry is permissible into facts and circumstances, whether before or after the time of making the will, the better to enable the jury to determine the probable state of the mind, and the extent and force of the restraint at the time the will was- executed. “The contents of the will, the manner in which it was written and executed, the nature and extent of the testator’s estate, his family and connections, their condition and relative situation to him, the terms upon which he stood with them, the claims of particular individuals, the situation of the testator himself and the- circumstances under which the will was made, are all proper to be shown to the jury, and often afford important evidence in the decision of the question of the testator’s capacity to make the will.” Tobin v. Jenkins, 29 Ark. 151, pp. 157-160, quoting 1 Jarman on Wills, 79.
The test of testamentary capacity is necessarily the same, whether the insanity be attributable to dementia or insane delusion — paranoia. While appellee’s plea against the will was broad enough to cover dementia, or general insanity, the evidence tends to show, and appellee only contends for, paranoia or delusional insanity. So we will next consider “delusion” and as synonymous with insanity.
It is for the court to define delusions, announce the rules for their ascertainment, and declare their effects. It is for the jury to find whether a delusion exists in any given.case. 1 Clevenger, Med. Jur. of Insan. pp. 308-309, § 23; Prather v. McClelland, 76 Tex. 574; Robinson v. Adams, 62 Me. 369.
“Paranoia” is a term used by medical experts, alienists and authors on medical jurisprudence to designate the form of insanity characterized by systematized delusions. A systematized delusion is one based on a false premise, pursued by a logical process of reasoning to an insane conclusion. 1 Wharton & Stille, Med. Jur. § 1020 et seq. There is one central delusion, around which other aberrations of the mind converge. The term •“paranoia” takes the place of the word “monomania” or “partial insanity,” and includes all that was formerly meant by that word, but is considered a more accurate term to describe the peculiar form of delusional insanity we are now considering. 1 Wharton & Stille, Med. Jur. § 1022; 1 Clevenger, Med. Jur. of Insanity, 860.
Mr. Clevenger, in his excellent work on Medical Jurisprudence of Insanity, says that “the theory of medical science that there is no such thing as partial insanity, and that a man is • either sane or insane, is not true in law; and that to establish unsoundness of mind it is not necessary that it should be general, it is sufficient if proved to exist on one or more subjects, though in all other respects the individual may conduct himself with the utmost jpropriety. Within this rule partial insanity or monomania invalidates a will, which is its direct offspring, or where the will was in any way the effect or the result of such insanity, though the testator’s general capacity was unimpeached.” 1 Clevenger, p. 293, § 15.
Our own court, in Seawel v. Dirst, 70 Ark. 166, said: “The law now recognizes the fact, well established by the investigation and observation of medical experts, that there may be a derangement of mind as to a particular subject and yet capacity to comprehend and intelligently act on other subjects. * * * * The fact that the grantor was a monomaniac, and possessed of insane delusions on some subjects not connected with the conveyance or the matters out of which it grew, is not sufficient to invalidate his deed. To have .that effect, the insane delusion must be such as to disqualify him from intelligently comprehending and acting upon the business affairs out of which the conveyance grew.” See also Bolling v. State, 54 Ark. 601; Green v. State, 64 Ark. 534. It is unquestionably true that one may be possessed of a delusion concerning one subject and yet be of sound mind on all other subjects, according to the weight of modern authority, and this should be so declared as a proposition of law. Gardner on Wills, 120, note. See Banks v. Goodfellow, L. R. 5 Q. B. 549; Taylor v. Trich, 165 Pa. St. 586; Dew v. Clark, 3 Add. Ecc. 79; Buswell on Insanity, chap. 1, p. 19, § 15; chap. 9, p. 270 note; chap. 11, p. 380, § 381 note 3; § § 273, 274.
The mere existence of a delusion, however, as we have said, “is not sufficient to invalidate a will. Its connection with the will must be made manifest and shown to have influenced its provisions.” If, notwithstanding the delusion, the will was directly traceable to another cause, it should not be avoided, 1 Wharton & Stille, § 84; Hemingway’s Estate, 195 Pa. 291; McGovran’s Will, 185 Pa. 203; Dale v. Dale, 36 N. J. Eq. 281; Hollinger v. Syms, 37 N. J. Eq. 233; Reichert v. Reichert, 107 N. W. (Mich.) 1057; Bonordi’s Will, 24 N. Y. Supp. 188; Den v. Gibbons, 2 Zab. 117, 138; Wetz v. Schneider, 78 S. W. (Tex.) 394; Bain v. Clint, 33 Pac. 542; Bohler v. Hicks, 48 S. E. 306; In re Clapham’s Estate, 103 N. W. (Neb.) 61; 1 Clevenger, 297; Potter v. Jones, 12 L. R. A. 161.
This delusion, which operates to defeat a will made under its influence, may be defined as. follows: Where one conceives something extravagant, and believes it as a fact, when in reality it has no existence, but is purely a product of'the imagination, and where such belief is so persistent and permanent that the one who entertains it cannot be convinced by any evidence or argument to the contrary, such a one is possessed of an insane delusion. Dew v. Clark, 3 Add. Ecc. 79; 1 Wharton & Stille, 80 ; Smith v. Smith, 48 N. J. Eq. 570; Am. Seamen’s Friend Soc. v. Hopper, 33 N. Y. 624; Middleditch v. Williams, 45 N. J. Eq. 734; Bohler v. Hicks, 48 S. E. 306; Robinson v. Adams, 62 Me. 369; Benoist v. Murrin, 58 Mo. 307; Stanton v. Wetherwax, 16 Barb. 259; 1 Redfield on Wills, chap. 3, § 11, subdiv. 20, 21; Matter of Will of White, 121 N.Y. 406; Page on Wills, § 104; Merrill v. Rolston, 5 Red. Surr. 252; 4 Words & Phrases, 3644, verbo, “Insane Delusions.”
The above is substantially the definition of, Sir John Nichol in 1826 in the great case of Dew v. Clark, supra, and it is one that has been approved and followed by a majority of cases and text writers ever since. A delusion cannot be predicated upon any purely esoteric and abstract subjects, for the reason that beliefs concerning such’ subjects are speculative, and could not be proved false. Gass v. Gass, 3 Humph. 278; 1 Redfield on Wills, chap. 3, § 11, subdiv. 21. See also in the matter of Bonard’s Will, 16 Abb. Pr. (N. S.) 185; 1 Clevenger, 303 et seq.; Thompson v. Quimby, 2 Bradford, 449; Thompson v. Thompson, 21 Barb. 107; Smith’s Will, 52 Wis. 543; Anderson’s Law Dict. 337; Owen v. Crumbaugh, 81 N. E. 1044; Whipple v. Eddy, 161 Ill. 114, 122.
But filial love and gratitude do not belong to a class of theoretical or metaphysical subjects not susceptible of proof. Indeed, there is scarcely anything in our civilization more concrete and real than these emotions growing out of the natural ties of blood, and incident to the family relation. Their presence or absence is manifested, and may be proved, in manifold ways. If a parent believes that his daughter does not love him, or love him as well as she does some others, or is ungrateful to him, the falsity of such belief, if it be false, may be easily shown. The conduct and declarations of the daughter herself, showing her mental status toward him and others, are original evidence. Wigmore on Evidence, § § 1730, 1715, 349, 190.
“Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings as made at the time in question are original evidence. If they are the natural language of the affections, whether of body or mind, they furnish satisfactory evidence, and often the only proofs, of its existence.” Greenleaf on Evidence, § 102. See Beller v. Jones, 22 Ark. 93; Jacob v. Whitcomb, 10 Cush. 255. It may also be shown that such erroneous belief, if it be such, is adhered to against all evidence and argument to the contrary. Such belief would therefore be a delusion.
But if the belief be that his daughter does not love him as much as he wishes, or as much as his daughter 'ought, or that his daughter is not as grateful as he wishes, or as grateful as she should be, then it is not a belief of the total want of affection and gratitude, but only as to the degree thereof. Such a belief necessarily is in the domain of speculation and theory, where no proof can discover its error; for no evidence can measure the quantum of love and gratitude that a father mlay wish his child to have towards him, nor' the quantum of love and gratitude that a child should have towards its parent. The unexpressed wishes of a parent as to the degree of love and gratitude that he desired his child to have for him, as well as the quantum of love and gratitude that the child should have for the parent, are so purely psychical and ethical thai they are not susceptible of proof. A belief of that kind cannot be shown to be erroneous ; nor can it be shown that such a belief would not be changed by evidence and argument. There Is no criterion by which to demonstrate the error- and unchangeability of such belief, and the whole subject-matter is in the wide realm of speculation, and cannot therefore be a delusion. Anderson’s Law Dict. “Delusion;” Buswell on Insanity, § 14.
Evidence is the means by which facts are proved. All evidence must be addressed to the sane mind. That which no sane mind would believe at all does not rise to the dignity of evidence. And a belief in something that no sane man could believe is evidence of insanity. 1 Wharton & Stille, § 83. Evidence, in a legal sense, is external. It is brought into the mind through the senses by the mental faculty of perception, and appropriated by the faculty of reason. Therefore, any evidence will produce some sort of impression or belief in the mind, correct or incorrect. It is a solecism to speak of a belief that is based on any evidence as an insane belief or delusion. A belief grounded on evidence, however slight, necessarily involves the exercise of the mental faculties of perception and reason; and where this is the case, no matter how imperfect the reasoning process may be, or how 'erroneous the conclusion reached, it is not an insane delusion. Anderson’s Law Diet. “Delusion,” note; Owen v. Crumbaugh, 81 N. E. 1044; In re Scott’s Estate, 60 Pac. (Cal.) 527. The distinction between an erroneous belief or mistake, based on evidence, and a delusion is clearly drawn in Smith v. Smith, 48 N. J. Eq. 570, as follows: “A delusion is the mind’s spontaneous conception and acceptance of that, as a fact, which has no real existence except in the imagination, and its persistent adherence to it against all evidence. Mistake, whether of fact or law, moves from some external influence which is weighed by reason. ■ Delusion arises from morbid internal impulse, and has no basis in reason.” See also the following: In re McGovran’s Estate, 39 Atl. 816; Dobie v. Armstrong, 55 N. E. (N. Y.) 305; Middleditch v. Williams, 45 N. J. Eq. (N. J.) 726, 17 Atl. 826; Potter v. Jones, 25 Pac. (Ore.) 769; Steinkuehler v. Wempner, 81 N. E. 482; Fulleck v. Allenson, 3 Haggard, 527 (by Sir John Nichol) ; Schouler on Wills, § § 162, 163; Clapp v. Fullerton, 34 N. Y. 190; Mullins v. Cottrell, 41 Miss. 324; Young v. Mallory, 35 S. E. 278; Davenport v. Davenport, 58 Atl. 535; Amer. Seamen’s Friend Soc. v. Hopper, 33 N. Y. 624; 1 Underhill on Wills, 127. In 1 Redfield on Wills, chap. 3, star page 86, note, it is said: “A belief based on evidence, however slight, is not a delusion, which rests upon no evidence but mere surmise.”
Capacity is presumed. The burden of proof is on the one who attacks a will, on the ground of insanity; and if the testator’s general capacity is conceded, the proof is more difficult, and in such cases the proof, of paranoia must be of the-clearest and most satisfactory kind. Mullins v. Cottrell, 41 Miss. 291 ; Smith v. Smith, 41 N. J. Eq. 570, supra; In re McGovran’s Will, 185 Pa. St. 203, supra; Fulleck v. Allenson, 3 Hagg. 527; Drew v. Clark, 3 Add. Ecc. 79.
The instructions should be confined to the issue, should be based on the evidence, and should be considered as a whole. Armistead v. Brooke, 18 Ark. 521, 527; Morton v. Scull, 23 Ark. 289; Little Rock & F. S. Ry. Co. v. Trotter, 37 Ark. 593; St. Louis, I. M. & S. Ry. Co. v. Rosenberry, 45 Ark. 256; Railroad Compmy v. Barry, 58 Ark. 198. The court should give instructions appropriate to any theory of the cause sustained by competent evidence. “It is therefore error for the trial .judge to refuse to give a specific instruction correctly and clearly applying the law to the facts of the case, even though the law is in a general way covered by the charge given, unless the court can see that no prejudice resulted from such refusal.” St. Louis, & F. S. Rd. Co. v. Crabtree, 69 Ark. 137. Each party has the right to have the theory of the ca,se he contends for, and which he has adduced evidence to support, submitted to the jury upon proper instructions, unless the court in its general charge has declared the law so that the respective contentions of the parties may be presented in argument to the jury without unfairness or prejudice to either. Prescott & N. W. Ry. Co. v. Weldy, 80 Ark. 454; Hamilton-Brown Shoe Co. v. Choctaw Merc. Co., 80 Ark. 440; St. Louis, I. M. & S. Ry. Co. v. Robert Hitt, 76 Ark. 233; Luckinbill v. State, 52 Ark. 45; Smith v. State, 50 Ark. 545.
II. Now, testing the instructions of the trial court by the principles above announced, our conclusions are as follows:
(1) The court properly outlined the issues and correctly defined testamentary capacity in the first instruction asked by appellants and modified and given by the court.
(2) The court erred in striking the second paragraph from appellant’s request No. 2. The second paragraph, to-wit: “A belief which is founded on any evidence as a basis is not á delusion,” was a concise and correct proposition of law. It was an indespensable test for determining whether a .belief of the class under consideration was a delusion, because such a belief is of something in its nature not impossible. It was peculiarly appropriate here because of the testimony of medical experts on behalf of the appellee defining a delusion as “a belief, an idea, held by a person against such ordinary, average information or experience as would to the ordinary, average individual prove sufficient to cause him to give up the idea.” This testimony did not meet the legal requirements of a delusion. Yet it was well calculated to cause the jury to conclude that a belief was a delusion .if it was held against any evidence that would convince “the ordinary, average individual” to the contrary; whereas the law is that the most extraordinary, eccentric and absurd beliefs are not delusions if based on any evi derice and not held against all evidence. Anderson’s Daw. Diet. “Delusion.” In this state of the record, a specific declaration like that contained in the second paragraph was essential to guide the jury to the right conclusion.. True, almost the converse of the proposition is stated in the first part of the first paragraph defining delusion; but the idea is not so tersely and clearly conveyed, and the appellants were entitled to have the proposition presented to the jury as they asked it in order to prevent the jury from being misled.
Paragraphs three and four were not improper, although, had the court given the second paragraph, it would not have been error to strike these; for the fourth was in part a repetition of the idea contained in the second, and the third was a repetition of what had already been given in the first instruction.
(3) The modification by the court of proponent’s third instruction and the giving of the second and third instructions for contestant authorized- the jury to find against the will if they found that the testator could not comprehend the deserts and relations' of his daughter. The court was specifically requested to limit the inquiry as to the mental incapacity, and the consequent failure to comprehend deserts, to that brought about by the delusion. But the court refused the request. Had not the attention of the court been specifically directed to the vice of these instructions, we should say that, taking the instructions as a whole, the proper construction to be put upon these would be that the mental incapacity referred to was only that brought about by the insane delusion mentioned in the other instructions. But the refusal of the court to confine these requests to the specific issue when its attention was called to it indicates that the court was willing that they should be given the broadest sweep of which they were susceptible. In that view they were inconsistent with other instructions, and very misleading and prejudicial. For there was a great deal of testimony tending to show at least moral perversion or “medical insanity,” if not delusion; and, in the absence of consistent and clear instructions throughout confining the inquiry to the issue of delusion, the jury might have concluded that they were authorized to find against the will because of what they considered the great moral perversity of Dr. Taylor towards his daughter, which might, in their opinion, have rendered him incapable of comprehending her deserts. Moreover, the modification of appellant’s' third request by the paragraph added gave the whole instruction a bad form, for the modification was not germane to the paragraph modified. It presented an independent proposition of law, and should have been asked and given, with the limitation indicated, as a separate proposition. The court erred, therefore; in modifying the third request of appellants by adding the second paragraph, and also in giving the second and fourth at appellee’s request without the limitation mentioned. See, in addition to cases already cited on this point supra, Benoist v. Murrin, 58 Mo. 307; Lucas v. Parsons, 24 Ga. 640; Williams v. Williams, 13 S. W. 252; In re Kendricks’ Estate, 62 Pac. (Col.) 609; Hardenburgh v. Hardenburgh, 109 N. W. (Ia.) 1015.
(4) The court did not err in modifying appellants’ fifth request. The idea contained in the part stricken out had been sufficiently covered in the first and fourth instructions given at the instance of appellants.
(5) The first instruction given at the instance of appellee was erroneous. It was not in conformity with the law we have announced as to delusion. It was hot enough that the belief should be false and without foundation of .fact 'to rest upon, but it must also be adhered to against all evidence and argument. The element of this persistency of the belief is entirely absent. Moreover, the court must never declare as a matter of law that a delusion exists upon any given state of facts. In this peculiar class of cases it is never a question of law for the court to determine whether a delusion exists in any case. That is for the jury. See cases noted on this point.
(6) We have already considered the defects in instructions 2 and 4 given on motion of appellee.
(7) Instruction No. 8 given on appellee’s motion was the law.
(8) Of the remaining requests of appellants the court did not err in refusing those numbered, respectively, 8, 10, 11, 12, 13, 14, 15, 16, 18, 19 and 22. Such of these as were correct were sufficiently covered by others given.
(9) The court should have given the 7th. The 17th was of the same purport, but argumentative in form, and was properly refused.
(10) 'As the court had given appellee’s request No. 2, it should also have given appellant’s request No. 21.
(11) Requests of appellants numbered 9 and 20 were substantially to the same effect, and were designed to present appellants’ theory that the marriage of appellee was the cause, of the discrimination against her in the will of her father. Appellee claims that Dr. Taylor was the final victim of a delusion that his daughter did not love him, which first began in a mere apprehension that she might not, as early as 1878, and progressed until it developed into a positive and persistent conviction. If this was true, it is- certain that it did not dominate him prior to her marriage, to the extent of causing him to deny her any of the comforts or luxuries of life that could contribute to her physical or mental well being. Prior to that time he seemed extremely solicitous of her welfare. Pie was generous and indulgent. He gave her excellent educational advantages and extensive travel in this country and in Europe. He administered without stint to her every want, and denied her no pleasure except that of showing her fondness and devotion to her friends and those whom she loved. Of this, however, he complained, and in some instances he protested in such an unnatural way as to warrant the conclusion that all his devotion to his daughter was tinged with supreme selfishness, and that there was a great and unnatural jealousy on his part towards his daughter because of her affections for others. But, notwithstanding all this, there was no diminution of his love for her, and no curtailment of the benefits and kindnesses extended toward her, until she married against his will. Pie told her before that if she married McClintock it would separate them forever, and begged her on his knees not to do so, and further told her that if she did marry Mc-Clintock she could never expect a dollar of his estate. Contemporaneously with the marriage, a marked change came over Dr. Taylor, which was ever thereafter manifested in his conduct towards her. He apparently lost all affection for her. He ceased to show any except a nominal interest in and solicitude for her, himself attributing the fact of -her marriage as the cause of their separation forever. Pie ceased thereafter to write -her regularly at short intervals, as had been his custom. In the letters he did write he upbraided her for her marriage, saying that he could never on that account enter her home. He refused to let her first-born be called for him, giving as his reason that he could not consent for his name to be coupled with one who had done him so great a wrong. He referred to the great wrong she had done him by her marriage, saying that he “believed that God would in some way punish her for her disobedience and ungratefulness.” He would not' let the matter be discussed with him by his most intimate friends, who sought to reconcile him to the condition; and at last, toward the close of his life, it is shown that he would turn pale, become angry, compress his lips, and leave the home of liis most intimate friend when her name was mentioned. Finally, after weeks of consideration and consultation with his attorney, going over the whole matter of his estate and how he wished it distributed in his will, he calmly and deliberately had the clause written which practically disinherited her.
From a consideration of the testimony which tends to establish the above facts, in -connection with all the other evidence, appellants contend that Dr. Taylor was of sound mind when he made his will and discriminated against his daughter therein solely on account of her marriage. And it is from this viewpoint especially that they predicate the theory that, no matter if Dr. Taylor was possessed of a delusion concerning his daughter’s affections for him at the time he made the will, such delusion did not dominate him in the provision concerning her, but that this was caused through resentment on account of her marriage with McClintock. It was upon this contention ’and theory that the requests under consideration were made, and we are unable to see how there could be a fair trial of the cause with that theory omitted from the charge of the court. This was such a distinctive contention and feature of the case, as developed by the proof, that we are of the opinion that the appellants were entitled to have it sent to the jury under one of the above specific requests for instructions, according to the authorities heretofore cited.
III. We will next consider the rulings of the court in the admission and exclusion of testimony, taking up the alleged er rors by the number and in the order presented in the briefs.
(1) The court refused to permit Miss Jordan to answer the following question: “Don’t you know it to be a fact that in that matter (meaning the suit of the Jordan heirs against Dr. Taylor) very great bitterness of feeling grew up on account of the difference between Col. Johnson and Dr. Taylor, in which your feelings entered?” The question was competent, but the error in not allowing the answer -was not prejudicial, because the information sought had already been substantially elicited on cross examination.
(2) The testimony of appellee was competent. Our statute provides that “in civil actions no witness shall be excluded because he is a party to the suit, or interested in the issue to be tried; provided, in actions by or against executors, administrators or guardians, in which judgment'may be rendered for or against them, neither party shall be allowed to testify against the other as.to any transactions with or statements of the testator, intestate or ward, unless called to testify by the opposite party.” Sec. 3093 of Kirby’s Digest. This statute has no application in a case involving a contest over the probate of a will. It was intended to protect the estates of deceased persons from the attacks of persons who had, or claimed to have had, business transactions with the deceased prior to. his death, and who are seeking to establish claims against his estate. This is clearly shown by the language, which declares that it is in actions where judgments may be rendered for or against the executors, administrators, etc. In other words, where a party seeks to obtain a judgment against the representatives of the estate of the deceased, and thus to impair or reduce the estate, the statute applies. But it cannot apply to controversies between devisees among themselves over a will, or between devisees or legatees and the heirs, as to the distribution of the estate by will or otherwise; for in such case the corpus of the estate is in no manner affected. There can in such cases be no judgment rendered for or against the administrator or executor as such by which the estate is impaired or reduced. In re Miller’s Estate, 88 Pac. 338, and the many authorities cited therein; also other cases cited in appellee’s brief.
(3) The court érred in admitting the testimony of the husband of contestant 'to prove the copy of the letter of contestant to her father, dated May 7, 1895, and in admitting the copy in evidence. Section 3095 of Kirby’s Digest provides that “either husband or wife shall be allowed 'to testify for the other in regard to any business transacted by the one for'the other in the capacity of agent.” The copying of the letter by the husband of appellee, at her request, was not “business transacted by the one for the other in the capacity of agent.” The terms “and business transacted” refer to business transactions with third parties, not with each other. The copying of the letter was not a business transaction in which he could act as her agent, she being present. The design of the statute was to enable the husband or wife who had transacted business with some third party, through the other as agent, to prove such business by the agent who transacted it, the principal not having personal knowledge thereof. The testimony was clearly incompetent. Pingree v. Johnson, 39 Atl. (Vt.) 202; Hazer v. Streich, 66 N. W. (Wis.) 720; First Nat. Bank v. Wright, 78 S. W. 686, 688. See also Mississippi River, H. & W. Ry. Co. v. Ford, 71 Ark. 192.
(4) and (5) Error, but not prejudicial.
(6) and (8) It was proper to admit testimony showing the character and reputation of Mr. McClintock.
(9) and (10) In will contests, where the unsoundness of mind alleged is dementia, the inequalities of the will, the nature and extent of the estate and the sources of its acquisition are proper to be considered in determining the testamentary capacity. Where delusion is alleged as the ground of incapacity, this principle can have no application, further than to show that the testator, if the delusion be established, was -dominated by it at the -time the will was executed. For this purpose the testimony is competent, just as it is competent, in cases of dementia, to show lack of testamentary capacity. The testimony of Col. Johnson which tended to show what property of appellee’s mother passed into the hands of Dr. Taylor, and its value, was proper. The court, however, should be careful to limit -it to that, and not permit the testimony along this line to bring in collateral matters that are calculated to prejudice the rights of appellants. Such was the effect of some of the testimony -of Col. Johnson, contained in subdivision number ten, which the court should have excluded.
(n) No error in the ruling, for the reason that a part of the 'testimony of Col. Johnson was competent. The motion was general; to exclude all.
(12) The court permitted the testimony of experts to assume an argumentative and speculative form on the moral phases of Dr. Taylor’s conduct towards his daughter and her rights. This was highly improper and prejudicial.
(13) and (14) No error in the rulings.
(15) Error; too remote; collateral matter was introduced, but it was not prejudicial.
• (16) to (19) Rulings were correct.
(20) The court erred in permitting counsel for contestant to ask Mrs. Taylor this question: “Did you send his daughter, Mrs. McClintock, any notice of his illness?” She answered, over the objections of appellants, that she did not, and was then examined further as to her reasons for not doing 'so. This was wholly impertinent matter. It was not responsive to anything that was brought out on the examination in chief, and was not proper as original evidence for any purpose. If the reason why appellee was not present at her father’s bedside in his last illness was on account of her not receiving notice of such illness, this testimony did not tend to prove it, and, at least, was not 'the best evidence of that fact. Appellee was a witness, and she was the only one who could testify that she did not receive notice of her father’s last illness, for that was knowledge necessarily peculiar to her, and her testimony only could be admissible evidence of that fact. It is never permissible to ask a question that is itself incompetent as preliminary to one that is competent. It was competent to prove, under certain conditions, that Dr. Taylor made no request that his daughter by notified of his last illness. But it was a question to be asked directly, if at all, and without unnecessary and incompetent preliminaries. It was not competent for the purpose of showing personal animosity of Mrs. Taylor towards appellee. It did not tend to show that. It was not competent to show Mrs. Taylor’s hostile attitude in the contest, for that was patent from the proceedings. Indeed, it was wholly incompetent for any purpose whatever, and it seems to us it had no other tendency than to arouse undue sympathy on the one hand, and prejudice on the other.
(21) This was harmless error.
(22) and (23) The rulings were correct.
(23/^) This was not prejudicial error.
(24) and (25) The ruling was error. On cross examination Mrs. Taylor was asked with reference to a conversation between herself and appellee on a train between Memphis and Louisville. The question asked her. was as follows: “I will ask you, Mrs. Taylor, if, when she came into the train to see you, she asked you if her father had left any word for her, and if you didn’t respond, 'No, he had spent his life trying to forget you,’ and that you had 'tried to make his life as happy as you could ?’ ” Her reply was, “ I positively said nothing of the kind.” Appellee was called in rebuttal, and over the objections of appellants the following occurred:
“Q. Mrs. McClintock, did you have the conversation referred to, at the time I mentioned, with Mrs. Taylor, on the train between Memphis and Louisville? A. I did. Q. Did you, in that conversation, ask her if your father left any message for you or any remembrance, and state what you asked 'her? A. I asked her if my father left any word of love or forgiveness; that it meant more to me than anything. Q. Please state what reply was made to that question? A. And as I remember it, and it is very distinct in my mind, she said that he spent his life in trying to forget me. Q. (By a juror). Said what? A. That he spent his life in trying to forget me, and that she tried to make his life as happy as she could.”
Conceding, as appellee contends, that if Dr. Taylor had stated to Mrs. Taylor that “he had spent his life' in trying to forget” appellee, it would have been proper for appellee to have shown that fact; and conceding, further, that, if Dr. Taylor did not so state, it was proper to show that Mrs. Taylor told appellee that he did so state, for the purpose of impeaching Mrs. Taylor’s testimony, still the above testimony fell far short of proving, or even tending to prove, such a state of facts as that. The questions asked above did not call for anything Dr. Taylor said to Mrs. Taylor concerning Mrs. McClintock. Mrs. Taylor was not asked what Dr. Taylor stated to her and she repeated to Mrs. McClintock, and Mrs. McClintock was not asked what Mrs. Taylor told her Dr. Taylor had said. The conversation, if it occurred in the manner indicated by the question asked Mrs. Taylor, was about one year subsequent to the making of the will, and was about a matter wholly immaterial and irrelevant to the issue of whether or not Dr. Taylor, when he made his will, was possessed of a delusion which influenced him to disinherit appellee. So the above testimony falls under the ban of the general rule that “when a witness is cross-examined on a matter collateral to the issue, he cannot be subsequently contradicted by the party asking the question.” McArthur v. State, 59 Ark. 435; Plunkett v. State, 72 Ark. 409, 412; Jones v. Malvern Lbr. Co., 58 Ark. 125; Butler v. State, 34 Ark. 485.
The evidence did not tend to show any hostile feeling on 'the part of Mrs. Taylor towards appellee, and was evidently not introduced for that purpose, but for the purpose of impeachment.
(26) The deposition of Epes Randolph was taken on interrogatories and cross-interrogatories before a notary public in Arizona. Randolph was present at the scene between Dr. Taylor and appellee at the Galt House in Rouisville, Kentucky. He testified, among ■ other things, that he heard appellee on that occasion tell her father that she no longer loved him or respected his wishes, but hated him and intended to marry McClintock. These statements, if true, were exceedingly important; for, if true, they tended to prove that if Dr. Taylor believed his daughter did not love him his belief was true, and therefore could not be a delusion. Appellee denied that she made any such statements, and the sharp conflict in the evidence at this point rendered the credibility of the witness Randolph a matter of significance to the cause of proponents. In order to lessen or destroy the credibility of this testimony, appellee called in rebuttal one Winn, who was a lawyer, and a brother-in-law of Mrs. Taylor, and who testified, over the objection of appellants, substantially that he was present when the deposition of Randolph was taken, and that there was no one present representing the contestant; that he went out to Arizona for the purpose of interviewing Randolph with reference to the case and taking his deposition if he found 'that he would make a witness. That he had the agreement to take the deposition and the interrogatories and cross-interrogatories sent 'to him, and read them over with Mr. Randolph. He did not ask him any questions, and none were asked him except the reading of the interrogatories that were sent out. The agreement, caption and certificate attached to the deposition of Randolph were by agreement read to the jury. The appellants moved the court to instruct the jury that witness Winn had a right, under the law, to be present at the taking of the deposition of Kpes Randolph; but the court refused, and the appellants duly saved their exceptions.
It was error to attempt the impeachment of this witness Randolph by this method. The law prescribes how a witness may be impeached. Section 3138 of Kirby’s Digest. The method adopted here is not found in the law, and it would be very unfair to the witness, who is absent, and to the party relying on the testimony of such witness, to permit it to be called in question in a manner not prescribed nor contemplated by the statute. Sec. 3181, Kirby’s Digest, provides that “where a deposition is taken upon interrogatories, neither party nor his agent nor attorney shall be present at the examination of the witness unless both parties are present or represented by an agent or attorney, or unless the opposite party, or his agent or attorney, has been seasonably notified of the time and place of taking the deposition, or the party attending has been notified by the opposite party to attend.” The deposition was 'taken, it appears, by agreement, and it is not pretended by appellee that the above statute was not fully complied with. If not complied with, her remedy was to quash the deposition for failure to do so, but not to attack it by the sudden and improvised methods adopted here in the midst of the trial.
The court, having erred in admitting the testimony of Winn in the first instance, only accentuated it by refusing to attempt even to mollify its prejudicial effect by telling the jury that Winn had a right 'to be present when the deposition was taken.
IV. We have now considered all the assignments of error urged here for reversal except those presented and argued under the heads, “The court should have given a peremptory instruction sustaining the will,” and “that the verdict is not sustained by the evidence.” Under these heads the appellants insist that “contestant’s hypothetical case omits facts that were essential, and contains statements that were not facts.”
The hypothetical question of appellee was defective in two important particulars: (1). It states with sufficient accuracy of detail the facts which the evidence tended to show about Dr. Taylor’s taking his daughter to Little Rock to live after the death of his wife; that, in compliance with her dying request that appellee and Miss Jordan should not be separated and that the latter should rear appellee, Dr. Taylor arranged to have appellee and Miss Jordan- live with their uncle, Mr. Richard Johnson, in Little Rock. It states correctly the circumstances and conditions of her home life with these relatives from the time she was taken thére in 1878 till she was taken away in 1882, showing the conduct of Dr. Taylor towards her on the occasion of his visits to her and her conduct towards him, and showing that Miss Jordan had treated appellee as a mother would treat her child during all this time, and that appellee loved her as a mother, etc. After all this is shown, the question states that “in 1882 Dr. Taylor took his daughter away from Miss Jordan and the family with which she was stopping, without indicating to them his intention of putting her in the permanent custody of others, and placed her in the care of his brother and sister-in-law, Mr. and Mrs. Gip Taylor, at Winchester, Kentucky, saying to the latter that he did not like the influences surrounding her at Little Rock, and that he did not think Miss Jordan a proper person to raise her, assigning as his reason that he was afraid his daughter’s affections would be weaned from him.” The question omits the following facts, which are undisputed, and which were proved by the witnesses for appellee: That a suit had been brought by the Jordan heirs, Miss Jordan herself, her brother and sister (Mrs. Gibson), against Dr. Taylor for their alleged interest .in their mother’s estate, charging that Dr. Taylor had taken title to property belonging to their mother in his own name; that the suit aroused the most bitter feeling on the part of the brother and sister of Miss Jordan, and the family with whom she and appellee were living, against Dr. Taylor; and that Col. Ben. Johnson, who at tended to the lawsuit for them, did not speak to Dr. Taylor up to the time of his death.
'True, Miss Jordan testified that this business difference did not affect her feelings towards Dr. Taylor. She testified that she had always disliked Dr. Taylor since he had married her mother, and that the lawsuit had nothing to do with her feelings; that the suit was attended to by Col. Ben. Johnson, and she had nothing to do with it. She testified that she always treated Dr. Taylor respectfully because he had married her mother, and that he had treated her respectfully and kindly until he took his daughter away from her.
The experts gave their opinion upon the assumption that every material statement in the hypothetical case was true, and that no material statements had been omitted. As one of them, Dr. Green, expressed it, he gave his opinion upon the assumption “'that that is a corr'ect statement from beginning to end.” This witness, in explaining his reason for declaring Dr. Taylor insane, said: “It seemed as though he took his child from one person to another, not that the moral influences were not good, not that they did not instruct his child in the way she should go and bring her up a useful woman, but he was afraid they would turn her from him and teach her not to love him.” Dr. Green further said, if Dr. Taylor “knew that the first lady to whose care that child was committed disliked him very much, and that in her daily life she was constantly thrown in the most intimate relations with people who disliked him, some of whom did not speak to him and never did speak to him up to the time of his death,” that the “change of the daughter from the custody of that lady to some one else would not seem an unnatural one,” and that if such were the facts they should have been stated to him. Now, it seems to us that the above omitted undisputed facts had ah essential bearing on the issue involved. They certainly tended to give a reasonable and natural explanation of why Dr. Taylor should have taken his child from Miss Jordan. They tended to show the reason for his saying “that he did not like the influences surrounding her at Bittle Rock,” and that “he was afraid his daughter’s affections would be weaned from him.”
Without the above facts being stated, the above reasons that he gave for his conduct would not furnish an excuse or explanation for it; and, unexplained, it was a most potent factor in the chain of evidence relied upon by appellee to establish the delusion. We are of the opinion that a correct consideration of the hypothetical question by the experts and a just determination of the issues involved demanded that the above facts should be embraced in the hypothetical case.
2. The hypothetical question states that he compelled Miss Didlake and his daughter to accompany him from place to place over Europe and through England and Scotland, when his daughter was in a very precarious condition of health and should have had quiet and rest. We find no evidence whatever in the record tending to establish the above statement. Yet, if the statement was true, it tended to show most unnatural and unreasonable conduct on the part of Dr. Taylor,’and was a cogent circumstance, doubtless, in the minds of the experts when they were forming their opinion of his insanity from a review of all his conduct as set forth in the hypothetical case. We find no .other defects in the hypothetical question that we regard as material.
Hypothetical questions must fairly reflect the evidence, and unless they do the resultant opinion evidence is not responsive to the real facts, and can have no probative force. Quinn v. Higgins, 24 N. W. 482. The hypothetical case must embrace undisputed facts that are essential 'to the issue. In taking the opinion of experts, either pa-rty 'may assume as proved all facts which the evidence tends to prove. The party desiring opinion evidence from experts may elicit such opinion upon the whole evidence or any part thereof, and it is not necessary that the facts stated, as established by the evidence, should be uncontroverted. Either party may state the facts which he claims the evidence shows, and 'the question will not be defective if there be any evidence tending to prove such facts. When a party seeks to take an opinion upon the whole or any selected part of the evidence, it is the duty of the court to so control the form of the hypothetical question that there may be no abuse of his right'to take the opinion of the experts. The right may be abused by allowing the opinion to be given in such a way as to mislead the jury by concealing the real sig nificance of the evidence, or by unduly emphasizing certain favorable or unfavorable data. On the above propositions, see 1 Gr. Ev. § 441, pp. 561, 562; Ince v. State, 77 Ark. 426; St. Louis, I. M. & S. Ry. Co. v. Hook, 83 Ark. 589.
The opinion evidence must be discredited because it is based upon a hypothetical case which omitted undisputed facts shown by the evidence, and included other facts not proved. We are of the opinion that, unless the evidence of the experts is taken into consideration, the other evidence is hardly sufficient to -support the verdict. It is impossible to divine what the opinion of the experts would have been had the hypothetical case reflected the essential and material facts established by the evidence. The case has not been properly and fully developed, and therefore, for the errors indicated,- the judgment is reversed, and the cause is remanded for new trial. • | [
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Hart, J.
This is an action brought by appellants in the Benton Chancery Court against appellees to foreclose a mortgage on certain lands situate in said county.
In 1902 the appellees, C. L. Hart and Ella L. Hart, desired to procure a loan of $2,500 and secure the same with a mortgage on the lands in controversy then owned by Ella L. Hart. She áppointed the appellee, C. L. Hart, her husband, as her agent to negotiate the loan. In furtherance of this purpose, he entered into the following contract:
“Bentonville, Ark., April 28, 1902.
“To Holmes & Hibbard, Springfield, Mo.,
“I hereby appoint you my agent to negotiate for me a loan of $2,500 for five years, to be secured by note or notes and deeds of trust, in form required by you, upon my real estate described in my application herewith. I agree to pay 8 per cent, per annum interest, payable semi-annually; of the said interest it is understood that all the excess above per cent, per annum (or 5 per cent, if you so elect) may be secured by separate notes and a second deed of trust, leaving the principal notes and deed of. trust to draw only 5/^ per cent, interest (or 5 per cent, if you so elect). Upon said principal note I shall have the privilege to pay $100 or any multiple thereof at the maturity of any coupon by giving the holder thirty days’ notice. .That part of the interest above specified which is secured by the second deed of trust shall be payable to Holmes & Hibbard, Springfield, Mo., (semi-annually or in the annual installment). In consideration of your services in the negotiation of said loan, I hereby agree to pay you a commission of......per cent, on said sum, cash, payable out of said loan. I also agree to pay the actual cost necessary to procure an abstract of title, to perfect the same, showing the deeds of trust to be the first lien, and to deliver said abstract to you to be held until 'the loan is paid off. I also agree to pay for recording the deeds of trust. And, further, in case I shall refuse or be unable to execute the papers in ac cordance with said application, after the loan has been approved by you, I agree to pay the expenses which you have incurred in the examination of the title and security. And you are hereby authorized and instructed to pay off and discharge all existing liens on the above described lands with the proceeds of the loan applied for, paying me or my appointee the balance, after deducting the above-named commission and charges and money advanced to remove existing liens. I make W. H. Conine, of Bentonville, Ark., my local agent in the negotiation of this loan.
[Signed] “C. E. Hart.”
Pursuant to this contract, C. E. Plart and Ella E. Hart received from Holmes & Hibbard the sum of $2,500 in cash, and executed to Holmes & Gay or bearer their three promissory notes of the date of June 17, 1902 — two for $1,000 each and one for $500, payable on or before July 1, 1907, and bearing interest at the rate of 5J4 per cent, from date until paid, payable semi-annually on the 1st day of January and Julv of each year — said interest being evidenced by coupons attached to said notes. The notes had stamped upon them, “Privilege reserved to pay $100 or any multiple thereof at the maturity of any coupon,” but this clause was not stamped upon the deed of trust, which was executed by them at the same time, conveying the lands in controversy to E. H. Holmes as trustee to secure the payment of said notes and interest coupons. The deed of trust was duly recorded June 20, 1902.
At the time of the execution and delivery of said notes and deed of trust, said C. E. Hart and Ella E. Hart also executed and delivered to said Holmes & Hibbard ten promissory notes of the same date' for $31.25 each, payable to Harry Hibbard or bearer, and due each six months thereafter — that is, payable in January and July of each year from January, 1903, to July, 1907, inclusive, and each bearing six per cent, interest after maturity. The aggregate amount of 'these notes is $312.50. They were secured by a second deed of trust conveying the same .lands to E. H. Holmes, trustee, which was recorded on the same day as the first deed of trust, but after the first deed. Neither of these ten notes nor the deed of 'trust given to secure the same contained the words, “or before,” as to time of payment, nor any privilege of paying any part of any note before it became due by its terms.
After the notes and deeds of trust were delivered to Holmes & Hibbard, they delivered the first mentioned three notes and deed of trust to Holmes & Gray, retaining the authority to collect the interest and principal as agents for said Holmes & Gay. The other notes payable to Harry Hibbard they retained as their own property.
The interest coupons due on said first three promissory notes January i, 1903, and the first of said ten notes due at that time were paid to Holmes & Hibbard, when due, and shortly after the next interest coupons on the $2,500 and the next note for $31.25 became due, the said Ella L. Hart paid them with interest to time of payment and also paid the principal sum of $2,500. Said Holmes & Hibbard delivered up to them the note of $31.25 and procured from Holmes & Gay and delivered up to her said three notes for $2,500. They also had Holmes & Gay to execute a deed of release thereof. The remaining eight notes of $31.25 each, and the second deed of trust given to secure the same, were retained by said Holmes & Hibbard.
Afterwards in a division of notes between the said E. H. Holmes and Harry Hibbard, said eight notes and deed of trust fell to Harry Hibbard as his individual property. On the nth day of December, 1903, he sold and assigned them to H. G. Peabody, of Green County, Illinois, who afterwards died intestate. Appellant John E. Eldred was duly appointed administrator of her estate by the probate court of said county.
After the execution of the deeds of trust and before the commencement of this action, Ella E. Plart and C. E. Hart, her husband conveyed the lands to other parties, who were duly made defendants.
The court held that the contracts and agreements in evidence constituted one transaction, and were a loan of $2,500 at eight per cent, interest per annum, payable on or before five years from date; that the payment of $2,500 with eight per cent, interest from date of notes till time of payment discharged the entire indebtedness represented by all obligations executed by them; that the notes sued on were thus paid off and discharged, and are not enforcible for want of consideration. That if the notes sued on are considered separate obligation from other notes and enforcible after the payment of the principal obligation of $2,500 and a further sum equal to eight per cent.-per annum thereon to date of such payment, such contract would be -usurious and void. Accordingly, the complaint was dismissed for want of equity, and an appeal has been taken to this court.
It will be observed that the parties to the contract by its terms provided that the principal sum of $2,500 with interest on it at 5J^ per cent, should become due on or before five years after date. In other words, it was payable within the prescribed time at the option of the borrower. The balance of $312.50 consisted of ten notes of $31.25, payable semi-annually without any conditions whatever. The intention of the parties, as shown by their written contract, was to provide for a loan for five years, with interest at the rate of eight per cent, and the time of payment was fixed by the notes. It is well settled that the interest which will accrue during the period of the loan may be divided up to suit the parties, and separate obligations given for all or any part of it, and this is usually done. Scruggs v. Scottish Mortgage Co., 54 Ark. 566; Banks v. Flint, 54 Ark. 40.
If the parties had the right to divide up the principal sum and the interest which would accrue into separate obligations to suit their convenience, it necessárily follows that the time of payment of these separate obligations might be. fixed at a given date, or an option might be given the makers within which to pay the notes, or some of the notes might foe made payable on or before a given date, and the remainder payable on a fixed date. The latter plan was adopted in the present case, so then each note became a binding obligation payable according to its own terms.
It is claimed by appellees that this construction renders the contract usurious and void. If it appears that the contract in its inception was a result of a device or subterfuge by which the borrower was compelled, in order to get the money, to pay a larger amount of interest than is allowed by the statutes, the notes will be determined to be usurious. Jordan v. Mitchell, 25 Ark. 258.
In the present case Hart had the option to let the'loan run for the entire period of five years; and if he had done so, the undisputed facts show that he would have paid eight per cent, interest. The parties had the right, when the contract was made, to divide up the payments for interest to suit their own convenience, and- to have separate obligations given for all or any part of it.
This seems to have been the plan adopted. If Hart had let the loan run for the full period of five years, he does not claim that he would have paid more than eight per cent, interest. He could not have been compelled to have paid it before that time He did not obligate himself to do so. He only obligated himself to pay the interest as it accrued before the principal sum fell due. So then it is undisputed that by the terms of the contract, as it could have been enforced against him, it was not affected with usury. The payment made by appellee Hart was voluntary, and was in the exercise of an option given him by the contract.
“Where a debt, including both principal and interest and due by installments, if paid according to the terms of the contract, is free from usury, the transaction is not rendered usurious by the voluntary payment of the debt in full before some of the installments matured, although as a result the creditor would receive, in the aggregate, a sum amounting to more than the principal and the maximum legal rate of interest.” Savannah Savings Bank v. Logan, 99 Ga. 291; Keckley v. Union Bank, 79 Va. 458.
If the lenders had exercised their option to declare the whole indebtedness due for failure of the borrower to fulfill a certain stipulation of the deed of trust, still there would have been no usury, -but in such a case a court of equity would treat the stipulation as a penalty and refuse to enforce it except upon a cancellation of the unearned interest notes, as was done in the case, cited by appellees, of Dugan v. Lewis, 14 S. W. (Tex.) 1024. This salutary rule was applied in this court in the case of Chaffee v. Landers, 46 Ark. 364, and in earlier cases cited therein.
As stated by Judge Riddick in the case of Leonhard v. Blood, 68 Ark. 162, “our law visits on a lender who contracts for usurious interest, however small, a forfeiture of his entire loan and the interest thereon. It follows from the plainest prin ciples of justice that such a defense should be clearly shown before the forfeiture is declared. For this reason usury will not be inferred where, from the circumstances, the opposite conclusion can be reasonably and fairly reached.”
We are of the opinion that the chancellor erred in refusing to hold that the notices sued on were valid obligations of the appellees, C. L. Hart, and Ella L. Hart, and in dismissing the complaint for want of equity.
The decree is therefore reversed, and the cause. remanded with directions to enter a decree in accordance with this opinion. | [
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Wood, J.
(after stating the facts). First. No written pleadings are required in a justice’s court nor in the circuit court on appeal from a justice of the peace. Mississippi Valley Const. Co. v. Chas. T. Abeles & Co., ante p. 374; Sparks v. Robinson, 66 Ark. 460.
The written statement of the facts t constituting appellant’s alleged cause of action was sufficiently formal and definite to meet the requirements of sections 4565 and 4580 of Kirby’s Digest as to the necessary statement of facts upon which the action is founded.
The appellant’s written statement of facts, or “complaint,” and the summons based thereon, notified appellee that it (was being sued for the killing of appellant’s cow by one of appellee’s trains, and that for said killing damages were claimed in the sum of.$38, also a penalty of $38, and a reasonable attorney’s fee. These statements were sufficient to admit of proof before the justice as to how appellee incurred and became liable, if at all, for the alleged penalty and attorney’s fee. Bush v. Cella, 52 Ark. 378. Being sufficient in the justice’s court, they were also sufficient in the circuit court, where the cause, on appeal, was for trial de novo.
Formal pleadings are not required before a justice of the peace, and on appeal to the circuit court'a demurrer should not be sustained to the complaint. Chowning v. Barnett, 30 Ark. 560. Even if the written statement were defective in the particulars designated by the court, such defects were of form and not of substance, and the court in no event should have dismissed the complaint (St. Louis, I. M. & So. Ry. Co. v. Moss, 75 Ark. 64; Choctaw, O. & G. Rd. Co. v. Doughty, 77 Ark. 1), but should have allowed appellant to amend and set forth the'particulars wherein it claimed that appellees had incurred the penalty prescribed by the statute.
Second. To refuse to'allow appellant to amend his complaint so as to allege the value of the cow killed to be $50, instead of $38, at that juncture in the proceedings was within the sound discretion of the trial court, and we can not say that the discretion was abused. Birmingham v. Rogers, 46 Ark. 254.
The pleadings in a cause are part of the record proper, and are not 'required to be set forth in 'the bil-1 of exceptions. No bill of exceptions was necessary to bring the error of sustaining the appellee’s demurrer to the attention of this court. The ruling was properly entered of record.
Third. As the cause must be reversed and remanded for new trial, it would be premature to pass upon the question 'of costs. | [
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Him,, C. J.
George Allison brought this suit in the chancery court of' Sebastian County for the Greenwood District against R. A. Rowe as administrator with the will annexed of Martha Allison, R. T. Powell and the Cherokee Construction Company. He alleged that Martha Allison died seized and possessed of ecrtain described lands in the Greenwood District of Sebastian County, and that he is the owner of an undivided one-tenth interest therein by inheritance from Samuel M. Allison, a son of the said Martha Allison, and that the said Samuel M. Allison had died intestare prior to the death of Martha Allison, leaving as his sole heirs the plaintiff and his sister, Laura Allison; that he was a minor from the time of the death of the said Martha Allison to the date of bringing this suit; that Martha Allison left a will which omitted to mention the legal representatives of said Samuel M. Allison, her son, which representatives were living at the time of the execution of the will; and that by reason thereof the said Martha Allison had died intestate as to the plaintiff, and that he was entitled to -the share of the estate which he would have received had she died wholly intestate; that Rowe as adminstrator had sold the lands to R. T. Powell under directions contained in the will, and not for the purpose of paying debts; that Rowe knew of the existence of the plaintiff and his interest at the time, he executed the deed to Powell; that Powell had . sold the land to the Cherokee Construction Company, which is in possession of it, and denying plaintiff’s interest therein; and prayed that the deeds from Rowe as administrator, and the deed from Powell to the Cherokee Construction Company, and all other deeds whereby it is sought to convey an undivided one-tenth interest in the lands, be cancelled in so far as they affect the title of the plaintiff.
Each of the defendants demurred to the complaint, which demurrers were overruled, and their exceptions noted of record. They then filed answers as follows: Rowe disclaimed any interest in the matter, but fully answered the complaint, and admitted that he was administrator with the will annexed of Martha Allison; denied that the plaintiff was the owner of an undivided one-tenth interest in the" land as an heir of Samuel M. Allison; denied knowledge as to whether S. M. Allison died intestate; lenied that the plaintiff was a child of said S. M. Allison, and alleged that Laura E. Allison was the only child and heir of said S. M. Allison; denied that the plaintiff was a minor at all times since the death of Martha Allison; denied knowledge of any interest -of the plaintiff; and alleged that the will of Martha Allison mentioned all and the only heirs of said Martha Allison.
Powell answered, likewise denying all the material allegations of the complaint and alleging purchase from Rowe under the power of sale contained in the will; that a deed to him had been made and duly recorded; and admitted that by sundry mesne conveyances the whole of the estate had been conveyed to the Cherokee Construction Company, which he alleged to be the owner thereof; and pleaded res judicata of the matters alleged in the complaint' by reason of an ejectment suit brought in the circuit court by the plaintiff against the Cherokee Construction Company, a copy of the pleadings and judgment in which case were filed as exhibits to the answer. (It appears from the judgment that the dismissal was without prejudice).
The Cherokee Construction Company adopted the answer of Powell.
The decree recites that “this cause is presented by the parties upon the complaint of the plaintiff and separate answers of each of the defendants, the depositions, exhibits, proofs and oral evidence,” following which the court proceeds to find the facts and declare the law. Judgment was entered in favor of the plaintiff for the recovery of an undivided one-tenth interest, for the possession of which a writ of possession was awarded, “to which findings and decree of the court the defendants severally, ex cepted and prayed an appeal to the Supreme Court, which is granted, and they are allowed sixty days for bill of exceptions.”
There is no bill of exceptions in the record, but there is copied into the transcript what purports to be the testimony taken in open court by agreement of the parties and the consent of the court, and reported by W. C. Holland. This testimony is not even authenticated by a stenographer’s certificate. But, even if it were, that would be insufficient to preserve oral testimony in a chancery case unless the same was treated as depositions and filed and identified as such. The subject of the record on appeal in chancery cases has recently been considered at some length, and the long established- principles governing the same applied and explained, in Meeks v. State, 80 Ark. 579; Jones v. Mitchell, 83 Ark. 77; Beecher v. Beecher, 83 Ark. 424; Murphy v. Citizens’ Bank, 84 Ark. 100.
There is no oral testimony before the court, and there are no recitals of evidence in the judgment, and therefore a conclusive presumption must prevail that the evidence sustains the decree of the 'court, so far as it is possible for a decree based on the complaint to be sustained by evidence. If the decree is without the issues, or the complaint does not state a cause of- action, this presumption cannot aid the appellee'. Jones v. Mitchell, 83 Ark. 77. Where the decree is not responsive to the issues, it is void. Rankin v. Schofield, 81 Ark. 440; Cowling v. Nelson, 76 Ark. 146.
Therefore, the court must determine the case upon the face of the record.
Before a suit to remove cloud from title can be sustained by a plaintiff, he must show that he is in possession of the land, or that his title is an equitable one, or that the land is wild and unoccupied. Where a defendant is in possession, and the plaintiff asserts a legal title, a chancery court is without jurisdiction to remove the cloud upon it, as there is an adequate and complete remedy at law. But, if other grounds for equity jurisdiction exist which give the chancery court jurisdiction, it may proceed to administer complete relief, although a part of that relief is purely legal. Apperson v. Ford, 23 Ark. 746; Branch v. Mitchell, 24 Ark. 431; Sale v. McLean, 29 Ark. 612; Lawrence v. Zimpleman, 37 Ark. 643; Bryan v. Winburn, 43 Ark. 28; Mathews v. Marks, 44 Ark. 436; Ashley v. Little Rock, 56 Ark. 391; Brown v. Bocquin, 57 Ark. 97; Brown v. Norvell, 74 Ark. 484; St. Louis R. & W. G. Co. v. Thornton, 74 Ark. 383; Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338.
These established principles, applied to tire admitted facts, demonstrate that the plaintiff had no equitable cause of action.
Section 5991 of Kirby’s Digest provides that “an error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings by an amendment in the pleadings and a transfer of the action to the proper docket.” Section 1282, Kirby’s Digest, provides that the transfer shall be from the circuit to. the chancery court, or the chancery to the circuit court, as the case may be, where there is error as to the forum in which the action is brought.
Had the defendants taken issue upon the allegations of the complaint, and not demurred to the complaint, nor moved to transfer, then, under the decisions in Cribbs v. Walker, 74 Ark. 104; Collins v. Paepcke-Leicht Lbr. Co., 74 Ark. 81; Ware v. White, 81 Ark. 220, the court would proceed to consider the case as if tried in the proper forum. But the defendants challenged the jurisdiction of the chancery court by demurring on the ground that the complaint did not show a cause of action. These demurrers should have been sustained and the complaint dismissed if it were not for the provisions of the Code above cited. Instead of assuming jurisdiction of the cause, the court should have transferred the action to the circuit court, when the demurrers developed that there was no cause of action in equity, if a cause of action at law was stated. Weaver v. Ark. Nat. Bank, 73 Ark. 462; Brown v. Norvell, 74 Ark. 484; Gaither v. Gage, 82 Ark. 51; Newman v. Mountain Park Land Co., 85 Ark. 208.
If the complaint shows no cause of action at law, the court should dismiss it or authorize an amendment -(if such a case where amendment would be proper), for it would be idle to reverse the decree for want of an equitable cause of action and send the cause for trial in another court if the allegations showed that the plaintiff had no cause of action there. Therefore, the court will consider the sufficiency of the complaint if brought at law.
The rights of the omitted child could not be divested by the sale of the estate under the will, for the will was as to him inoperative. Had the property been sold under orders of the probate court for the purpose of paying debts or any other purpose over which the probate court would have jurisdiction, then different questions would be presented. But the only titles which the defendants have were obtained through a sale under the power of sale in the will.
It is insisted that the statute which renders the will inoperative gives a remedy against devisees and legatees. This is true, but it does not follow that it is the only remedy. It does not exclude an omitted child or grandchild from recovering land from purchaser of those devisees or legatees or from purchasers under the power of sale contained in the will. The statute makes the will absolutely inoperative as to such omitted child, and provides that he shall be entitled to such share and portion of the estate as if the ancestor had died intestate. It provides further that he shall be entitled to recover of the devisees and legatees in proportion to the amount of their respective shares, and vests the probate court with power to decree such distribution; and provides further that a writ of scire facias shall issue against the- devisees or legatees in case they refuse to pay. Sections 8020, 8021, Kirby’s Digest. But there is nothing in the statute to indicate that it was intended to remit the child solely to this action in the'probate court against the devisees or legatees; and such a construction would enable devisees and legatees to defeat the whole purpose of the statute. The object of the statute is to give such omitted child such share as he would have received, had there been no will. And these provisions for relief against devisees and legatees are merely to enable the probate court, which would not otherwise have jurisdiction, to make .the distribution and enforce the same. The share of the child is absolute, and such share cannot be defeated by being conveyed away, either under a power of sale in the will or by the devisees or legatees.
The complaint alleges that while these titles were being acquired against the plaintiff he was a minor. Therefore the statute of limitations could not run against him, nor could he be estopped by any conduct during his minority to claim his inheritance. Tobin v. Spann, 85 Ark. 556. Nor can the defense of innocent purchaser be set up against the incapacity of an infant. Harrod v. Myers, 21 Ark. 592; Van Deusen v. Sweet, 51 N. Y. 378; Seaver v. Phelps, 28 Mass. 304; Hovey v. Hobson, 53 Me. 451, s. c. 89 Am. Dec. 705; 1 Jones on Law of Real Property in Conveyancing, § 70.
The conclusion which the court reaches is that the complaint shows a good cause of action to recover an undivided interest in the land in an action at law against plaintiff’s co-tenants who are in possession who are holding it against him, but that there is no jurisdiction in a court of equity to entertain such a suit as framed in the pleadings; it was beyond the issue to render judgment for the possession of the land, and beyond the jurisdiction of a chancery court to entertain this suit. Therefore the decree is reversed, and the cause remanded with directions to transfer it to circuit court, and there to proceed according to law. | [
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Hile, C. J.
This is an action by C. W. Whitehead, as administrator of the estate of O. D. Wright, deceased, against the “Grand Lodge of the State of Arkansas, -Knights of Pythias of North .America, South America, Europe, Asia, Africa and Australia,” to recover upon an endowment policy issued to the said O. D. Wright. It is alleged that O. D. Wright died on the 27th of December, 1906, and Whitehead was, on the 15th of April, 1907, appointed administrator of his estate by the probate court of Dallas County, and duly qualified as such; and that O. D. Wright was, on the 27th of October, 1905, a member in good standing of Sprig of Myrtle Lodge No. 30, of Fordyce, one of defendant’s subordinate lodges, and as such member was entitled to take out an endowment policy of the defendant benefit society; and that the defendant on said day issued to him its endowment policy by which it agreed to pay an endowment of $300 at the death of said Wright to his personal representative; and that the defendant had been duly notified and refused to make payment of said $300 as promised and agreed in the policy.
The answer admitted the death of Wright, and, sub silentio, that he was in good standing when the policy was issued to him, and that the defendant had been duly'notified of his death; and alleged that it was not indebted to the administrator on account of said policy because it contained a stipulation reading as follows: “Provided, that the said Knight is in good standing in his Lodge at the time of his death, and the records of the said Grand Lodge sustain that fact;” that the said Wright was not in good' standing in said Lodge at the time of his death, and that the records of said Grand Lodge do not sustain the fact of such good standing.
Upon the trial the policy was introduced in evidence, and it was admitted that Wright had died, and that Whitehead had been appointed and qualified as administrator of his estate before the'bringing of this suit. No other evidence was introduced, and the court directed the jury to return a verdict for the plaintiff, which was done, and from the judgment entered thereupon the benefit society appealed. ■
The court was right in directing a verdict for the plaintiff in this state of the evidence. A certificate issued-to a member of a benefit society is evidence -that the member is in good standing, and such good standing is presumed to continue until there is proof that it no longer exists; and the burden of establishing that the member is not in good standing must be assumed by the association. Royal Circle v. Achterrath, 204 Ill. 549, s. c. 98 Am. St. Rep. 224; Ind. Order Foresters v. Zak, 29 Am. St. Rep. 318; Siebert v. Sup. Council, 23 Mo. App. 268; 25 Cyc. 925, subdiv. (g).
It will be seen' from the foregoing statement of facts that, either by failure to deny allegations of the complaint or positive admission, all the facts necessary to a recovery were shown except the fact that the member was in good standing at the time of his death as shown by the books of the Grand Lodge; and, under-the authorities above cited, the burden of proof as to this matter rested upon the defendant, as, good standing once being shown, there was a presumption of its continuance. No other questions arising in the case, the judgment is affirmed. | [
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McCueeoch, J.
Appellant is a foreign insurance corporation, and, prior to March 23, 1905, entered this State for the purpose of operating its insurance business herein. It fully complied with the laws of the State, established agencies throughout the State, and continued the operation of its business up to' the above mentioned date, when it ceased to transact business. On that date its manager in the city of New York notified the Auditor of the State of Arkansas in writing that its agents had been instructed “to cease at once from transacting business in the State,” and the Auditor immediately made an indorsement on his records to 'the effect that appellant company had ceased to do business in the State.
The General Assembly enacted a statute approved May 13. 1907, known as the Wingo Act, requiring that every foreign corporation, Including .railroad and insurance companies, before doing business in the State, shall file in the office of the Secretary of State a copy of its charter or articles of incorporation,, etc.; together '■ with a statement of its assets, liabilities, capital stock, etc., and a certificate designating its place of business in the State and an agent upon whom process may be served.
The third section of the act also provides that “all corporations hereáfter incorporated in this State and all foreign corporations seeking to do business in this State shall pay into the treasury of this State for the filing of articles a fee of $25 where the capital stock is $50,000 or under; '$75 where the capital stock is over $50,000 and not more than $100,000; and $25 additional for each $100,000 of capital stock.”
Subsequently, appellant company made tender to the Secretary of State of compliance with all the provisions of the WingO' Act, except that of payment of the fee, and claimed the right to resume business in the State without paying the fee. This-claim was denied by the Secretary .of State, and this action was. instituted in the circiut court of Pulaski County to compel hiih, by' mandamus, to accept and' file the copy of charter and certifi cates, etc., tendered to 'him by appellant, without requiring payment of said fee, and to issue to appellant a certificate thereof.
■The position assumed by appellant’s counsel in support of the claim that their client’s exemption from payment of the fee is, (1) that a foreign corporation which was admitted into the State prior to the passage of the Wingo Act, and whose domestic rights have not been legally terminated, cannot be required to pay the prescribed fee; and (2) that appellant’s corporate rights and legal existence in the State had never been terminated, but that its legal existence in the State was still preserved.
We do not deem it necessary to express an opinion as to the first contention of counsel, for we have reached the conclusion that appellant had, prior to the passage of the Wingo Act, voluntarily withdrawn from the State, relinquished whatever domestic rights it possessed, so far as its right to transact business was concerned, and that, in order to come into the-State again for the purpose of doing .business, it is amenable to all the requirements of the new statute, including payment of the prescribed fee.
It is argued by counsel with much earnestness that there is a difference between suspension of active business operations in the State by a foreign corporation, and the complete extinction of its legal existence here. This difference is, we think, more theoretical than real, for a foreign corporation is admitted into the State only to transact business. Art. 12, §11, Const. 1874. It does not by such admission become a domestic corporation, nor acquire a permanent domicil in the State like a domestic corporation. 19 Cyc. p. 1206; Liverpool Ins. Co. v. Board of Assessors, 44 La. Ann. 760; St. Louis & S. F. Ry. Co. v. James, 161 U. S. 545; Wilson v. Ry. Co. 64 S. C. 162.
It has no other tangible existence except in the maintenance of its place of business and the transaction of business, and when it ceases to perform those functions it has ceased to exist in the State. In this respect it is easily distinguishable from a domestic corporation, and the same rules for determining its continued existence do not apply.
We do not mean to say that a mere temporary cessation of business would necessarily operate as a complete withdrawal from the State, but we hold that where a foreign corporation ceases definitely to maintain its place or places of business and its agents in the State and to transact business here, its legal existence here is terminated.
Moreover, there are certain annual duties required of foreign insurance corporations by the statutes of this State in order to continue their legal existence in the State after having been duly admitted, which appellant failed to do. These statutes were in force when appellant originally came into the State, and it is not contended that it has complied with them after it ceased to do business in 1905.
These omissions of annual duties are set forth in the agreed statement of facts, as follows:
“(b) That it did not transmit to the Auditor of State the statement required by section 4337 of Kirby’s Digest.
“(c) That it did not file with the Auditor of State the statement required by section 4338 of Kirby’s Digest, and did not pay into the State treasury the tax therein stipulated on its net receipts except for the year 1905.
“(d) That it did not give the bond required by section 4339 of Kirby’s Digest.
“(e) That it did not certify to the Auditor of State the names of agents appointed by it to solicit risks and insurance policies or receive applications therefor as required by section 4363 of Kirby’s Digest.”
These omissions manifest, in the most unequivocal manner, an intention to ■ completely withdraw from the State and from reach of its laws.
We are again met with the argument that these statutory requirements relate only to the transacting of business in the State, and not to the right of continued existence in the State — ■ that, notwithstanding the failure of appellant to comply with the law and its discontinuance of business in the State, it maintained an opaque existence here which preserved its right to resume active operations at any time, with immunity from payment of an entrance fee. We do not, however, concur in this view, for, as already shown, when the foreign corporation wholly withdraws its business from the State and ceases to do business and ceases to comply with the laws of the State with reference thereto, it withdraws itself from the State and loses its legal identity here except in so far as the statute restrains its departure while outstanding contracts made here remain unperformed.
The circuit court was right in refusing to issue the writ of mandamus, and his judgment is, therefore, affirmed. | [
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Hill, C. J.
In March, 1906, Clark rode over the Jonesboro, Lake City & Eastern Railroad from Chickasawba to Blythe-ville and from Blytheville to Chickasawba, making nineteen trips between these points. He was charged, and paid, ten cents for his fare on each trip. The distance between these points is less than one mile. Clark has brought this suit for penalty, under the act of April 4, 1887 (secs. 6611, 6615, and secs. 6619-6620, Kirby’s Digest). Section 6612 provides that “any railroad company may charge the sum of twenty-five cents for the carriage of any passenger who may get on or off a train at other than a regular station.” The only question in this case is, whether Chickasawba was a regular station of the appellee -railroad-company, or whether it was a flag station. This is a question of fact. Chicago, R. I. & P. Ry. Co. v. Stanford, 84 Ark. 406.
" There is no conflict in the essential facts as developed by the plaintiff and defendant in the trial, and at the conclusion of the trial 'the court directed a verdict for the defendant, and the plaintiff has appealed, and it is for this court to determine whether there was any evidence to send that issue to the jury.
The evidence developed these facts: Appellee railroad crossed the Paragould & Southeastern Railroad at Chickasawba, and the P. & S. E. Railroad had a depot at this place. In March, 1906, appellee railroad company had no depot there, had no joint agency with the other railroad, and did not use its depot; but its trains stopped at the crossing, right opposite the depot of the P. & S'. E. Railroad. It received and discharged passengers at this point when called to do so; it received freight, express and mail matter, although it did not always stop for the mail, merely checking up to receive and discharge it when it did not otherwise stop. It sold no tickets, issued ho bills of lading for freight nor checks for baggage, and did not keep an agent at the place. When freight or express matter was delivered, it was merely taken on without receipt or contract. This railroad had numerous other stations like this one, where it received and discharged passengers and freight upon being flagged, receiving the passengers without tickets and freight without bills of lading. Such stations were designated “flag stations” by the railroad; and at such flag stations its trains made no stops unless signalled to do so. Most of these stations were at sawmills along the line. It also maintained regular stations at numerous places at which tickets were sold and baggage checked, bills of lading issued, and at which station houses were erected and agents maintained. At such stations the agent would stamp and sell tickets to the public, issue and receive bills of lading for freight and express, operate the telegraph and receive orders for the moving of trains, and everything necessary to conduct a public carrier’s business at such place. The depots were kept warm in cold weather for the reception of passengers, and separate waiting rooms for the white and black races were equipped and maintained, in conformity to the laws of the State.
There is a statute in North Carolina -that uses the term “regular station” in referring to depots maintained for receiving freight tendered at railway stations or wharfs or boat landings; and a case came before the Supreme Court of that State as to whether that statute had been violated where freight was refused at a place called “Spring Hill.” At the place in question there was no depot, no freight house, no agent, no employees stationed there for the purpose of receiving freight, although at times considerable freight was received there; the mail trains stopped there regularly to deliver mail, and the place was designated by the company as a station. The court said:
“A ‘regular’ depot or station of a railroad company, as con templated by the statute, is a certain place situate along side of or near to its railroad, fitted up by it with suitable buildings, erections, appliances and conveniences for carrying on generally and continuously, in an orderly manner, the business of transporting freights, as is usually done by such companies. Such buildings, and other things necessary for a regular depot or station, may be greater or smaller in number and extent, or more or less elaborate, than others of like kind and for like purposes; but whether they be sufficient, or good, or indifferent, or are well or ill adapted to, and intended for, the purposes of prosecuting the business of transporting freights and passengers, receiving from shippers generally, and at all seasonable times, such freights as the railroad company is required to transport over its road, such depots or stations imply, ordinarily,' such suitable and sufficient buildings, erections and appliances as may be necessary in receiving and delivering freights, and for the temporary protection of 'the same until they shall be transported or delivered to the persons entitled to have them, and that 'the company has a business office there, and suitable agents and employees to receive and deliver freights, to give receipts, bills of lading for the same, and to do the like and similar service.” Land v. Wilmington & Weldon Railroad, 104 N. C. 48. See, also, to the same effect, Kellogg v. Suffolk & Carolina Rd. Co., 100 N. C. 158, and Ill. Cent. Rd. Co. v. Latimer, 128 Ill. 163.
The reasoning of the North Carolina court was applied to the handling of freight, but is equally as applicable to the handling of passengers. The term “regular station” or “station,” as distinguished from a “flag station,” has a well understood meaning in railroad parlance, and is, recognized by the courts. 7 Words & Phrases Judicially Defined, p. 6039 and p. 6644. When the Legislature used the -term, it must be taken that it was intended as generally understood.
The court was right in directing the verdict.
Judgment affirmed | [
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Hart, J.
(after stating the facts). The following special propositions are urged to reverse the judgment:
•First. That the-damage to plaintiff’s crops was caused by the obstructed condition of the drains and culverts; that, by the terms of its right of way deed from'the plaintiff, defendant was not bound to maintain the drains and culverts across its right of way free from obstruction, but that it was plaintiff’s duty to keep them open. The clause -of the deed referred to is as follows : “It is further expressly understood and agreed * * * * that all drains, both natural and artificial, shall be so bridged or protected by culverts that the flow of water from said lands and lands adjacent shall be in nowise impeded or restricted.” Clearly, the language of the deed contemplates that the railroad company should maintain its bridges or culverts so that the natural flow of the water should not be obstructed or impeded. . Obviously, the railroad company never intended to give up any part of its control over its roadbed, for such a course would not only tend to hinder it in the operation of its trains, but would endanger the lives of its employees and passengers. • .
Moreover, independent of any contract, the duty of maintaining its culverts so as not to impede the free passage of the surface water was cast upon the defendant. The drains and-culverts were allowed to fill up and become obstructed by the falling of dirt when the defendant was raising its roadbed, and they could have been cleaned out at a reasonable expense. This rule was announced in the case of Little Rock & Ft. Smith Ry. Co. v. Chapman, 39 Ark. 463, and has been followed by the court ever since. A citation of only a few of the later cases is necessary. Baker v. Allen, 66 Ark. 271 ; Chicago, Rock Island & Pacific Ry. Co. v. McCutchen, 80 Ark. 235; Little Rock & Ft. Smith Ry. Co. v. Wallis, 82 Ark. 447.
The allegations of the complaint are sufficient to sustain an action for damages, aside from the liability imposed by the contract, and the measure of damages would be the same whether the action is founded on the contract or on the liability of the railroad independent as announced in the Chapman and other cases supra.
Second. That the court did not correctly instruct the jury as tc the measure of damages. The instruction given hy the court on that point at request of the plaintiff is as follows’:
“You are further instructed that if you find from a preponderance of the evidence that defendant was guilty of negligence in maintaining its roadbed, and thereby obstructed the natural drainage of the surface water from plaintiff’s land and caused them to dam up against said roadbed and flow back over plaintiff’s land and damaged or prevented making crops thereon, your verdict will be for plaintiff for such actual damages as the evidence shows he sustained during the years 1904, Í905 and 1906 as was the result and solely due to the negligence of the defendant, with interest thereon from the time such damage occurred; and in arriving at the amount of damages from the evidence you will take into consideration the loss of rental value of the cleared land that he was unable to cultivate; the extra cost of planting and working his crop, less the extra cost he would have been to in gathering and working so much of the yield as was lost; the cost of reclearing land caused to have grown up by being forced to lie out as the result of such negligence; and, after finding the sum of such' losses for the years 1904, 1905 and 1906 as the evidence convinces you that plaintiff has sustained, and the interest on the same from the time such losses occurred at six per cent, per annum, you will return into court written on the complaint a verdict for plaintiff and assess his damages at that sum.”
At the request of the defendant the court gave the following instruction on the measure of damages:
“15. If you should find for the plaintiff, you should assess such amount of damages as you find he has actually sustained as the necessary result of defendant’s negligence, and the measure of his damages would be the cash value of the crops at the time they were destroyed, provided you find such destruction as alleged. And, in arriving at the measure of the value of his crop alleged to have been destroyed, you may take into consideration the fertility of the soil upon which they were growing, the state of their cultivation, their condition at the time of destruction, the favorable or unfavorable season following for the maturity of the crop with their probable yield; you will also take into con sideration further expense of cultivation, if any further cultivation was needed, the additional expense of gathering and marketing them, and also the impending hazard or peril of weather and storms between the times they were destroyed or injured and the close of the season for maturing and gathering the same.”
Appellant railway company urges that the instruction given by the court at the instance of the plaintiff allows double damages. In other words, that it directs the jury to find for the damages of the cleared land that appellee was unable to cultivate, its rental value, and also the extra cost of planting and working it.
The different elements of damages were correctly stated in the instruction of which complaint is made. It is true that the naming of all of the elements of damage in one instruction may have caused confusion in the minds of the jury and thus have influenced it to apply an element of damage to a class of lands to which it was not applicable, but we do not think such was the result.
The testimony introduced, the instruction given on the measure of damages at the instance of the defendant, now appellant, and the whole conduct of the trial as disclosed by the record, show that the case was tried on the theory that the damages to the crop were its actual value, where it had matured sufficiently to have a market value at the time of its destruction, and that on the cleared land which could not be cultivated the damages were limited to its rental value. There was an evident intention to follow the rule laid down in the case of Railway Company v. Yarborough, 56 Ark. 612, and the later cases of St. Louis Southwestern Ry. Co. v. Morris, 76 Ark. 542; Little Rock & Ft. Smith Ry. Co. v. Wallis, 82 Ark. 447, and St. Louis, I. M. & S. Ry. Co. v. Saunders, 85 Ark. 111.
Appellant’s counsel must have known the meaning the court intended to convey by the instruction, and, instead of making a general objection, should have requested a specific instruction which would have eliminated the fault. St. Louis, I. M. & S. Ry. Co. v. Hoshall, 82 Ark. 387; St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255.
Third. Counsel for appellant asks for a reversal of the judgment because, in ascertaining the value of the damaged crop, Daniel, the manager of the plantation, was permitted to answer the following question:
“Did you have a similar piece of land, similarly situated, similarly cultivated, similar area, that you cultivated in 1905?”
It is claimed that this was permitting Daniels to give his opinion to the jury as to what the damaged lands would have produced, and as to what tracts were similar. Daniels had already testified what amount of cotton and of cotton seed the damaged land produced. His answer to the question and to those of. similar import 'shows that he simply stated to the jury what an equal area of adjoining land of similar quality of soil produced the same year when cultivated by him in the same manner as the overflowed land. The jury were left free to determine whether the negligence of the railroad caused the difference in production and how much of it was caused thereby. The facts were stated to the jury, and under the instruction of the court they were left to draw their own inferences.
Fourth. Counsel for appellant also asks a reversal on account of the second instruction, which is as follows: “No. 2. The jury are instructed that if they believe from the evidence that the parties working the land, claimed to have been damaged, were share hands working for a proportion of the crop, and no part of it belonged to the parties working the land but to the plaintiff, then he is entitled to recover the entire damage and not the share hands; that the share hands were not the owners.” Daniels was the only witness who testified on that point, and we quote from his testimony as follows:
“Q. I want you to explain just what kind of a contract you have with 'your hands — whether or not' you actually rent any land.
“A. I don’t rent any land' at all. I furnish the hands to make the crop. When the crop is gathered and ginned, I get one-fourth, and their provision and supplies come out of their part.
“Q. Have you any other kind?
“A. Some work on the halves under the same contract.”
This testimony shows that the owner did not intend to rent the land, and, taken in connection with his other testimony, shows that the owner had control of the land, and that the other parties were merely hired to make the crop. Hammock v. Creekmore, 48 Ark. 264; Tinsley v. Craige, 54 Ark. 346.
The witness Daniels made a detailed statement of the amount of damage suffered, and it is sufficient to say that his testimony warranted the verdict.
Finding no reversible error in the record, the judgment is affirmed. | [
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Hiee, C. J.
Mike Stastney was a Bohemian, about 20 years of age; and was employed by the Bryant Lumber Company to work in its lumber yards. He spoke but little English. He was employed in piling boards, and the foreman came to him and directed 'him to go to a different place to work, and he followed the foreman in going to the new duty assigned to him. The lumber company had a spur track running into its lumber yards, upon which they used a switch engine for the purpose of pulling the cars to receive its lumber.
There was a pile of lumber stacked about two feet and a half from the track, a sufficient distance for the engine and cars to clear it, and this lumber had only been stacked about ten minutes prior to the occurrence in question. It was necessary to go over or pass by this pile of lumber in going to the new work assigned to Stastney, and he and his co-worker, who was also directed to go to the, new .place of work, followed the foreman when he gave them the order to work at the new place. The foreman went on top of this pile for the purpose of seeing that the track was clear. The engine was then within about forty feet of it, and was approaching. The foreman saw that the lumber pile was sufficiently distant from the track to be clear of the engine, but finally noticed that two pieces were sticking out from the lumber pile, about four and a half feet above the ground; and then he knew that the cars would strike the pieces and knock the pile down. He jumped and saved himself, but Stastney did not get off in time, and the pile was knocked down by the engine and injured him.
The lumber had been piled by other laborers who were also under the supervision of the foreman, and the cause of the pile of lumber falling was due to the negligent manner in which these two sticks were allowed to extend over the track or the failure of the employee running the engine to discover that fact. There was a curve near 'this place, and it is probable that the engineer in charge of tire engine .could not have seen the danger. Lor the injury received Stastney brought suit and recovered judgment in the circuit court, and the lumber company has appealed.
Stastney testified that the foreman told him to come with him and load the car, and he understood that he was ordered to go with the foreman; and he and his co-worker did so and followed the foreman on to the pile of lumber which fell; and received no warning of the insecure position of the pile to which he was carried on his route nor notice from the foreman of the impending danger from the approaching engine.
On the other hand, the foreman testified that he did not tell him to follow him, but merely directed him to go to another pile of lumber to work there; and that his own act of going upon the lumber pile was not connected with carrying these men to their new place of work, but merely to see if the track was clear, which was a part of his duty as foreman of the yard; and he says that, immediately upon discovery of the peril, he gave notice by signs and voice to Stastney.
This conflict as to the facts upon which the case hinges is irreconcilable, and should go to the jury, upon proper instructions, for their determination. The defendant’s theory of the case was that the act causing the injury to the plaintiff was due to the negligence of his fellow-servant (this occurred before the passage of the act of March 8, 1907, p. 162). The court refused the in-instruction presenting this theory, and the court was correct in doing so. The fellow-servant doctrine has no place in the case. If Stastney has any action, it is for the failure to provide him with a safe place to work; and the duty resting upon the master to provide a safe place to work is a non-delegatory duty, and is always master’s duty, whether performed in fact by the president of the company, a foreman or a day laborer. Railway Company v. Triplett, 54 Ark. 289; St. Louis, I. M. & S. Ry. Co. v. Inman, 81 Ark. 591; Archer-Foster Const. Co. v. Vaughn, 79 Ark. 20.
No presumption of negligence arises from the mere happening of the accident which caused the injury in such actions as these, between master and servant; but the master is required to exercise ordinary care in discovering defects and in repairing them, and in discovering dangers and obviating them. And this care and prudence must be tested by the business in which the master is engaged and the circumstances surrounding it, and commensurate with its requirements. Ultima Thule, Ark. & Miss. Ry. Co. v. Calhoun, 83 Ark. 318; St. Louis, I. M. & S. Ry. Co. v. Andrews, 79 Ark. 437; Mammoth Vein Coal Co. v. Looper, ante p. 217.
It follows that if the testimony of Stastney is true — and that is a matter for the jury — then the company would be liable if it failed to exercise due care to see that the route over which he was directed to travel in getting to his work was safe; and, if not safe, that he was warned of its danger, and that this danger was not so obvious and patent that he would be guilty of contributory negligence in following the directions of his employer. Upon this theory, and this theory alone, could the plaintiff recover. And hence it is wholly immaterial whether the foreman or some of his co-workers were negligent in stacking the lumber or running the engine against it, for that is not the inquiry; the sole inquiry being whether the master had exercised due care in providing him a safe place to travel to his work, and, if not safe, whether it had warned him of the dangers, unless they were of so obvious a character that every one of common experience must be presumed to take notice of them.
The court refused this instruction: “You are instructed that if the foreman exercised the care of a reasonably prudent man in ascertaining the fact that the lumber was improperly piled, and acted as promptly as was demanded of a reasonably prudent man in notifying plaintiff of the danger, then it cannot be said that the foreman was guilty of negligence.” No instruction was given upon this point. This instruction correctly states the law as applied to the facts of this case, and it went to the very core of the controversy. This subject has been recently reviewed in the cases of Mammoth Vein Coal Co. v. Looper, ante p. 217; Western Coal & Mining Co. v. Garner, ante p. 190.
The defendant asked several instructions as to the duty of a servant assuming risks which were open to his observation, or dangers readily discoverable by him by the use of ordinary care. Some of these might well have been given; but it is questionable whether the court would have reversed the cause for failure to give them, because the instructions are not specific, but are general statements of the law on this subject, and seem to take for granted that this was an obvious risk, whereas it is a matter of fact for the jury to determine, and not one of law for the court to determine, as might be inferred from these requested instructions. They rather assume that there was some obvious and patent risk in going upon the lumber pile, and the evidence does not justify that. In fact, the foreman did not discover at once the protruding pieces of lumber; and it may well have been that from Stastney’s point of view they could, not have been seen or their effect comprehended, while, on the other hand, their disastrous effect might have been so obvious as to render it a piece of rashness to have gone upon the pile. This was a question of fact- that should have been sent to the jury. No better exposition of the law on this subject can be found than in the opinion of the late Mr. Justice Riddick in the case of Choctaw, O. & G. Rd. Co. v. Jones, 77 Ark. 367.
Judgment reversed and cause remanded. | [
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Hart, J.,
(after stating the facts.) In this case the appellee made a contract with appellant to furnish him transportation from Coffeyville, Kansas, to Hot Springs, Arkansas. A part of the journey was to be made over the line of a connecting carrier, the Little Rock & Hot Springs Western Railway Company. The auditor of appellant company, by mistake, took up that part of the ticket which entitled appellee to be transported over the line of the connecting carrier. In ignorance of this mistake appellee took passage over the line of the connecting carrier to his destination. For non-payment of his fare he was ejected from the train of the connecting carrier. The appeal here is by the initial or contracting carrier. The action against it has no element of tort, but is an action .for failure to perform its agreement of carriage.
The undisputed testimony shows that appellee had sufficient money with which to pay his fare.
Appellee could not increase his damages for a breach of contract by neglecting or refusing to do that which -would lessen them. By refusing to pay his fare he contributed to 'his injuries, which are the direct result of his own conduct, and not the breach of the contract for his carriage.
In the case of St. Louis S. W. Ry. Co. v. Reagan, 79 Ark. 484, which was an action against the railway company for damages alleged to have resulted from delay in the company furnishing free transportation to its hospital to its employee in violation of its agreement, the action was held to be one on contract, and the court said it had none of the elements of a tort. On the measure of damages, at page 489, the court said: “When a party has the money with which to purchase a ticket, the natural and ordinary damages which would result from a breach of a contract to give him free transportation would be the price of the transportation agreed to be furnished. If plaintiff in the case had the money with which to have purchased a ticket, we see no reason why he should be allowed to recover damages for failing to furnish a ticket, beyond the price of the ticket.”
If appellee had been ejected from the train of the carrier with whom he made the contract, he would have had a right of action against it for breach of duty as a carrier, and his measure of damages, unless there was an element of malice, recklessness or wantonness, would have included the humiliation that resulted from his expulsion from the train. Hot Springs Railroad Company v. Deloney, 65 Ark. 177. But where the eviction was made by the connecting carrier, the question is one of contract only, and appellee can recover only the extra fare demanded, by the payment of which all other damages could have been, prevented. The undisputed testimony shows that appellee paid the sum of sixty-five cents to complete his journey, and this is all that he is entitled to recover under the contract.
A remittitur will cure this error; and if appellee will within two weeks remit the excess of the judgment over sixty-five cents, judgment will be entered here for that amount; otherwise the cause will be remanded for a new trial. | [
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Battle, J.
The State of Arkansas seeks to recover, by this action, of the St. Louis & San Francisco Railway Company the penalty prescribed by statute for transporting freight at a greater rate than is allowed by the laws of this State. The issues in th,e case were tried upon an agreed statement of facts, which is as follows:
“It is stipulated and agreed that at all the times mentioned in the complaint the defendant was and now is a railroad corporation, organized under the laws of the State of Missouri and operating a line of road in and through the counties of Clay, Greene, Randolph, Mississippi, Poinsett, Lawrence, Craighead, Sharp and Fulton, in Arkansas, and through many counties in Missouri.
“That prior to May 3, 1907, it operated a line of road through Hoxie and Cape Girardeau, via a bridge over and across Black River, near Pocahontas, Arkansas; also a line between Hoxie and Jonesboro, this forming a line between Cape Girardeau, Missouri, and Jonesboro, Arkansas. That Pocahontas and Biggers are stations -on said line.
“That prior to May 3, 1907, defendant received and transported carload shipments over the said line between the stations of Biggers, Pocahontas and Jonesboro and other stations over said bridge. That said bridge is the property of the Randolph County Bridge Company, a corporation organized under the laws of Arkansas.
“That on May 3, 1907, said bridge was condemned by the civil engineers as unsafe for the passage of trains, and was unsafe for the passage of trains to the present time. That since May 3, 1907, defendant has transported all carload shipments between Biggers and Jonesboro and Pocahontas and Jonesboro via Poplar Bluff, Cape Girardeau or Chaffee, stations in Missouri, and via Big Creek, Arkansas, over a line operated by this defendant via said last named station, and it has -refused to route any -carload shipments via the Pocahontas bridge over Black River because of the unsafe condition of said bridge.
“That it has applied the tariff rates established between Pocahontas and Jonesboro, and Biggers and Jonesboro via Poplar Bluff and -Cape Girardeau, and not the tariff which would apply between Biggers, Pocahontas and Jonesboro via the bridge.
“That it has not since May 3, 1907, routed any carload shipments between the last named places via the Pocahontas or Black River bridge, or via Hoxie, Arkansas.
“That the rates charged by the defendant since May 3, 1907, on carload shipments via its line through Missouri and between Biggers, Pocahontas and Jonesboro exceed the rates fixed by the railroad commission of Arkansas and in force during said period between said stations via the Pocahontas or Black River bridge.”
The plaintiff recovered a judgment for $500, and the defendant appealed.
The only question in the case is, were the charges appellant was authorized to make and collect for transporting freight between the points named above controlled by the laws of Arkansas? This question was decided in Hanley v. Kansas City Southern Railway Co., 187 U. S. 617. The facts in that case, as stated in the opinion, were as follows: “The plaintiff owns a road running through several States and Territories. The road, after leaving Missouri, runs for twenty-eight miles and a fraction through Arkansas to the dividing line between that State and the Indian Territory, then nearly one hundred and twenty-eight miles in the Territory, and .then over one hundred and seventeen miles in Arkansas again to Texas. There is also a branch line ■running from Fort Smith, in Arkansas, to Spiro, in the Indian Territory, about a mile of which is in the State and fifteen in the Territory, and there are other branches. Goods were shipped from Fort Smith by way of Spiro and the road in the Indian Territory to Grannis, in Arkansas, on a through bill of lading, the total distance being a little more than fifty-two miles in Arkansas and nearly sixty-four in the Indian • Territory. For this the railroad charged a sum in excess of the rate fixed by the railroad commissioners, and was summoned before them under the State law. The commissioners decided that the company was liable to a penalty under the State statute, assert their right to fix rates for continuous transportation between two points in Arkansas, even when a large part of the route is outside the State through the Indian Territory or Texas, and intend to enforce compliance with these rates.” The court held that the transportation of the goods in that case was interstate commerce, and was under the regulation of Congress, free from interference by the State of Arkansas; and that, “to bring the transportation within the control of the State, as part of its domestic commerce, the subject transported 'must be” for the entire distance carried “under the exclusive jurisdiction of the State.”
Following Hanley v. Kansas City Southern Ry. Co., we hold that the transportation of goods in this case was interstate commerce, and was under the regulation of Congress, free from the interference of the State of Arkansas; and that no penalty is recoverable in this action.
Judgment is reversed, and the action dismissed. | [
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Wood, J.
(after stating the facts.) Appellee insists that there is no ¡Mil of exceptions, but an examination of the transcript discloses that “a bill of exceptions,” containing all that is necessary and proper to be included in a bill of exceptions, was presented to and certified and signed by the trial judge. • True, this bill of' exceptions contained also more than was necessary for a bill of exceptions to show, matters that were properly of recqrd, but that did not have the effect to vitiate the bill of exceptions.
Second. The only question necessary to consider is whether or not appellant could charge twenty cents for first-class passenger fare over its road for a distance of three-miles and a fraction (1572 feet), appellant’s road being over fifteen miles and less than seventy-five miles in length.
Penal statutes must be strictly construed. There is nothing in the act prescribing what shall be the charge' for a fraction of a mile. The act only takes notice of the integral mile. There is nothing-in it requiring the carrier to carry the passenger free for a fractional mile, or inhibiting it from charging the same fare for a part of a mile, that it charges for the whole mile. It was evidently not the purpose of .the Legislature to require a railroad company to proportion its charge for á fraction of a mile. For the act does not say so; it fixes the charge to be made “per mile.” As was said by the Supreme Court of Ohio, “a construction which would subdivide the mile into halves or tenths, or hun dredtlis, or even thousandths or infinitely less fractions, would be unreasonable and impracticable, and would subject the company to endless annoyance and numberless prosecutions;” for, if we may take account of a half or one-third of a mile, there is no reason why we should -not be compelled tO' measure to the exact one-thousandth part of a mile.” Cleveland, C. C. & St. L. Ry. Co. v. Walls, 58 L. R. A. 651.
It was not intended that the charge of five cents “per mile” “should be subdivided in the ratio of the fractional portion of each mile of transportation. Our currency does not lend itself to such a minute subdivision.” Hunter v. Erie R. Co., 56 Atlantic R. 139.
The court erred therefore in refusing to instruct the jury to return a verdict for the defendant, as requested by appellant, in its first and second prayers.
The judgment is therefore reversed, and the cause is dismissed. | [
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McCuelocit, J.
Appellant, H. N. Baker, was indicted by the grand jury of Polk County for the crime of perjury, alleged to have been committed by giving material false testimony in the trial of a civil action pending in the circuit court of that county wherein J. H. Skillern as receiver of the Howard County Bank was plaintiff and said H. N. Baker was defendant. A trial of the case, on change of venue, in the circuit court of Sevier County resulted in conviction of the accused, and he appealed to this court.
The facts of the case are as follows: On September 2, 1902, appellant executed to the Howard County Bank, of Nashville, Arkansas, his negotiable promissory note in due form for the sum of $568.30, payable ninety days after date. The bank was subsequently adjudged to ibe insolvent, and its assets were placed in the hands of a receiver. Skillern was appointed as receiver, and instituted an action at law against appellant to recover the amount of the note. On the trial of that case appellant, in support of his defense to the action, testified that there was no consideration for the note, that he executed it to the bank as accomodation paper to enable it to use the note as collateral to borrow money on, and that at the time of the execution of the note the cashier of the bank, one D. P. Terry, executed to him a written receipt, which he exhibited to the trial jury, stating that the instrument was an accommodation note. This is the testimony that is alleged to be false, and its material bearing upon the issue involved in that case is obvious. It is sufficiently proved that the appellant gave the testimony above recited in the trial of said civil action, and that he exhibited to the jury a writing which he testified was the receipt given him by Terry, the 'bank cashier, at the time he executed the note, stating that the note was executed as accomrqodation paper.
The defect in the evidence is in its failure to establish the falsity of appellant’s testimony.
It will be seen that the alleged false testimony consists of two statements: One that the note was executed for accommodation, and the other that the cashier gave appellant at the time a written receipt showing that it was accommodation paper. There is no evidence at all in this record that the statement in the first named particular was false. No testimony at all was introduced by the State tending to show that the note was not in fact given as accommodation paper. The note was introduced, reciting on its face that it was given for a valuable consideration, and that would have been legally sufficient in a civil action to sustain a recoyery for the amount of the note, even in the face of appellant’s testimony that it was in fact given as accommodation paper and without consideration, but in a criminal prosecution for perjury the recitals of the note do not prove the falsity of appellant’s testimony. It will not do to say that the mere recitals of the note are sufficient to convict the appellant of falsely , swearing in contradiction of those recitals. The recitals might be considered in corroboration of some direct testimony of the falsity of appellant’s testimony, but they are not sufficient to establish its falsity.
In prosecutions for perjury the falsity of the testimony which is the basis of the accusation must be affirmatively proved. In Blevins v. State, 85 Ark. 195, we said: “The falsity of the testimony is a material ingredient of the offenses. It is the gist of the offense, and must be proved as alleged. The mere improbability of the truth of the testimony given, without affirmative proof of its falsity, is not sufficient in a prosecution for perjury to establish its falsity.”
Nor is there any proof that the cashier did not give the receipt testified to by appellant. Neither Terry, the cashier, nor any other witness was introduced to show that a receipt was not given. The State introduced testimony to the effect that, after Terry absconded and fled to Mexico, appellant, through the latter’s attorney (who was also appellant’s attorney in the civil, action), procured from Terry a receipt which he claimed was a duplicate of the one given at the time of the execution of the note, and paid him fifty dollars to execute the duplicate. But appellant testifies that he found the original, and that it was the original which he exhibited at the trial of the civil action. It is not proved that this was false, and that appellant exhibited the so-called duplicate which he obtained from Terry while in Mexico. One of the attorneys for the plaintiff in the civil action testified in the trial of the present case that at the former’s trial he copied precisely the receipt exhibited by appellant, but the copy which he made varies from the copy of the duplicate adduced by the State in evidence, in that the former copy contains several words which do not appear in the latter. The identical paper which appellant exhibited at the trial of the civil action was not filed as a part of the record of that case, and appellant did not, at the trial of the present case, produce either the original which he claimed that Terry gave him, when he executed the note or the duplicate which Terry sent him from Mexico. His failure to do so, however, affected only the credibility of his testimony in the present trial, and did not tend to establish the falsity of his testimony in. the trial of the civil action. It gives his story an appearance of improbability, but does not furnish affirmative proof of its falsity. It might serve as corroboration if there was any direct evidence of the falsity of his testimony, but it is not affirmative evidence of the falsity of the testimony given at the trial of the civil action. We therefore find no evidence upon which the verdict of conviction can be sustained, and the judgment must be reversed.
There are numerous other assignments of error in the motion for new trial; but as appellant’s counsel has not favored us with an argument of the other questions relied on for a reversal, we need not discuss them.
On account of the legal insufficiency of the evidence, the judgment of conviction is reversed, and the -cause is remanded for a new trial. | [
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Per Curiam.
All inquiry as to the validity of the plaintiff's tax title was cut off by the decree of confirmation of the tax sale under which their title was acquired. Wallace v. Brown, 22 Ark., 118; Buckingham v. Hallett, 24 Ark., 519; McCarter v. Neil, 50 ib., 188.
The court adjudged the defendant’s subsequent tax title invalid upon proof which has not been brought upon the record, and we cannot inquire into the correctness of the finding.
Affirm. | [
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Sandels, J.
An analysis of the case shows six questions r ... tor decision. 1
First — Has equity jurisdiction as to the matters stated in , the bill ?
Second — Are residents and tax-payers proper parties plaintiff?
Third — May affirmative as well as injunctive relief be had in such a proceeding ?
Fourth — Was the appropriation of the $1000 by the council valid or void?
Fifth — Are Aldermen, as such, liable to an action for votes given upon measures before them ?
Sixth — What liability, if any, did the Mayor, ordering, the Treasurer making, and the council receiving the payment, incur by reason of this transaction ?
The so-called appropriation was a nullity. Jacksonport v. Watson,33 Ark., 704; Sykes v. Mayor, 55 Miss., 115; scc. 5, art, 12, Const.; Minot v. West Roxbury, 112 Mass., 1.
The officers of the city are trustees in the management and application of the funds and property of the people of the city. 2d Dill Mun. Corp., 915. The application of municipal funds to illegal purposes by them is a breach of trust. 2d Dill. Mun. Corp., 919, and notes. Equity has jurisdiction to prevent the misapplication or waste of trust property. 2 Story Eq. Jur., 1252, and note. The fact that after the suit was brought the City Council recalled and cancelled the unpaid warrant did not oust the jurisdiction of the court. That was but part the purely equitable relief demanded. It was desired to prevent its reissue and cancel the appropriation. Besides, under our chancery system had the ccncellation of the warrant been the only original ground of equity jurisdiction, it was not lost. Price v. State Bank, 14 Ark., 50.
Suits by tax-payers against towns and their officers to prevent or remedy misapplication of town funds are not only allowed by statute but it is the prevailing doctrine in America, that tax-payers may maintain them, in the absence of statute. Their relations to the municipality are analogous to those of stockholders to a private corporation. Mansf. Dig., sec. 929; Jacksonport v. Watson, 33 Ark., 704; Crampton v. Zabriski, 101 U. S., 601; 2 Dill. Mun. Corp., 914-915; Blakie v. Staples, 13 Grant (Canada), 67, cited in note on p. 902; 2 Dill. Mun. Corp.
There is no foundation in the authorities for the claim that the power of chancery is only injunctive. It would be a reproach to justice if it were true. In the present case the appropriation was made, the warrant was drawn, and the money paid, by the Treasurer before an attorney could have comprehended the situation and have written the caption of a complaint. Chancery has ample power to prevent further wrong and require reparation for that which has been done. 2 Story Eq. Jur., 1252, and notes; Frost v. Belmont, 6 Allen, 152; Citizens Loan Assn. v. Lyon, 29 N. J. Eq., 110; Attorney Genl. v. Poole, 1 Craig & Ph., 17; People v. Fields, 58 N. Y., 491; Attorney Genl. v. Boston, 123 Mass., 460; Atty. Genl. v. Dublin, 1 Bligh. 312; 2 Dill. Mun. Corp., 909-912.
As against the liability of these defendants, it is contended that a City Council being in some sort a legislative body, its members are not liable for the erroneous exercise of their discretion in voting upon measures before them. This is true. Jones v. Loving, 55 Miss., 109; Freeport v. Marks, 59 Pa. St., 253.
But where, after exercising their discretion in voting $1000 of the money of the town, to pay an obligation which they and a few others had bound themselves to discharge, they or their building committee took the money, it was a conversion of trust funds, for which each of them, as also the Mayor who ordered, and the Treasurer who made, the payment, are liable. Frost v. Belmont, 6 Allen. 152; Citizens’ Loan Assn. v. Lyon, 29 N. J. Eq., 110; Atty. Genl. v. Poole, 1 Craig & Ph., 17; Atty. Genl. v. Wilson, 1 Craig & Ph., 1; Blakie v. Staples, 13 Grant (Canada), 67.
The vote of confidence given appellants at the next ensuing city election does not effect their liability to repay the money which they took from the city treasury.
Affirmed. | [
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Per Curiam :
The instructions of the court were erroneous; and did not fairly submit to the jury the question as to the consideration of the note sued on, which they ought to have decided. It was proven that ten mining claims, which Smith and Cutter claimed to own, were to constitute the capital stock of the company to be organized, and that the note was given in part, if not wholly, for the interest that Gillen agreed to take and did take in this stock as shares. Evidence was adduced tending to prove that the claims were conveyed to a company formed, but not legally organized as a corporation. If this be true, Gillen acquired an equitable right in whatever interest or property Smith and Cutter had in the mining claims, if any, although the company was never legally organized as a corporation. Such an equitable right may be a valuable consideration. The partial failure of the consideration for which the note was given did not defeat the plaintiff’s right to recover something. There was no evidence tending to show that the consideration of the note was illegal.
Reverse and remand for a new trial. | [
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Per Curiam.
If the husband held the note with the express authority to collect it, he could only have made such collection as would inure to the benefit of his wife. He could not accept in its payment, the satisfaction of his own debt without proof that the wife gave her assent, cither express or implied, to this misuse of her funds. Williams v. Johnston, 92 N. C., 532; Belton Compress Co. v. Belton Brick Co., 64 Texas, 337.
There was no proof that Mrs. Arnett ever authorized such conduqt. The judgment is reversed and cause remanded. | [
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Per Curiam :
The record of the cause in which the decree relied upon as the foundation of the appellant’s title, was rendered, shows that it was based upon a warning order which does not state material facts required by the statute, and that proof of its publication is fatally defective. The decree was therefore void. Affirm. | [
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Hughes, J.
William Wood died in Izard County in 1878, leaving him surviving, Sarah Wood his widow, and seven minor children, some of whom intermarried with some of the plaintiffs below — appellants here. The appellee, T. J. Mathews, having intermarried with Mollie Wood, one of said minors, became the probate guardian of the others. Sarah Wood, the mother of these children, died intestate in January, 1880, and there was administration upon her estate.
While a widow, in 1879, Mrs. Sarah Wood bought merchandise, goods and wares of the firm of R. C. Mathews & Son, amounting to $169.69. On the 11th day of November, 1880, Mathews & Son made affidavit to the correctness and justice of the account, and on the 18th day of November, 1880, the same was indorsed, “examined and approved this the 18th day of November, 1880, notice waived,” and signed,
“T. J. Mathews, Guardian Wm. Wood’s heirs.”
This account was thereafter presented to the Probate Court of Izard County, and a judgment for the amount thereof was rendered'by said court against T. J. Mathews, as guardian of the minor heirs of William Wood, deceased, in which judgment it is recited that the court found that Mrs. Sarah Wood was the mother and natural guardian of the heirs, and that the goods were purchased by her for the benefit of said heirs. It does not appear that this judgment was ever paid by, or that credit for the same was ever allowed the guardian in any settlement of his in the Probate Court. In February, 1886, appellants obtained a writ of certiorari from the Judge of the Third Judicial District, to have the proceedings referred to in the Probate Court certified up to the March term of the Izard Circuit Court, and filed their petition, charging that said judgment was void for the want of jurisdiction of the subject matter, and of the minor heirs who were not served with process, and praying that the judgment be quashed.
Appellees answered and demurred to the petition, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer to the petition was sustained by the Circuit Court. Appellants excepted and appealed.
The mode of revising a judgment of the Probate Court is usually by appeal, but when the Probate Court exceeds its jurisdiction, the judgment may be examined into and quashed upon certiorari.
It appears to this court too clear for argument, that the Probate Court had no jurisdiction to entertain an action, suit or proceeding of this kind. We are of opinion that the proceedings in the Probate Court; in allowing said claims were coram non judice and void, and that the said judgment of said court ought to be quashed and held for naught. A guardian cannot be sued in the Probate Court. It is the duty of the Probate Court, from time to time, to make the necessary appropriations of money, or personal estate, for the maintenance and education of minors, and when these are insufficient, it may, upon application, order a sale of the minor’s real estate. Secs. 3501, 3502, Mansf. Digest.
A guardian is not responsible, either personally or in his fiduciary capacity, for necessaries furnished his ward without his consent, express or implied. Overton v. Beavers, 19 Ark., 623. In such case the infant may be, and if so, an action lies against the infant in the proper tribunal, and he may defend by his guardian, and if a judgment is obtained, it should be against the infant, and not the guardian. Id.
The judgment is reversed, with direction to the court below ■:to overrule the demurrer to appellant’s petition. | [
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Per Curiam,
The order confirming the report of the commissioners appointed to allot dower, was the final judgment of . the Probate Court in the case; and the appeal from that judgment carried the whole cause to the Circuit Court for trial de novo. It was error, therefore, in the Circuit Court to confine the appellant to her exceptions to the manner of allotting dower. The judgment will be reversed and the cause remanded for a rehearing. | [
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Per Curiam.
The fee of twenty dollars taxed against the appellant is authorized by section 2469 Mansf. Dig. This section was part of the original code, approved July 22d, 1868. The same Legislature passed an act regulating fees for Prosecuting Attorneys, among other officers, which was approved July 23, 1868.
Since that time the act regulating fees has been amended, but as to the items of fees of Prosecuting Attorneys, the act of 1868 and the amendatory act of 1875 are identical, except as to the amount allowed for convictions in cases of homicide not capital. There is no repeal, express or implied, and the fee was properly taxed as part of the costs. Chamberlain v. State, 50 Ark., 132.
The right of the Legislature to impose 10 per cent, damages upon affirmance has long been conceded and affirme'd by this court. The provision imposing it (section 2471) is not unconstitutional.
The tax of three dollars complained of is imposed by section 5595 Mansf. Dig., and has heretofore been held a valid exaction.
The amount of $5.75 for printing the appellee’s brief is taxed under rule 23 of this court, which is based upon section 1307 of Mansf. Dig.
These charges are not part of the punishment of the accused. Costs are awarded in order that the State may prosecute the guilty at their own expense. Fanning v. State, 47 Ark., 442.
Motion overruled. | [
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Cockrill, C. J.
The appellant, who is the daughter and sole heir of Isaac Burgett, deceased, presented her. petition to the Circuit Court for a writ of certiorari to quash an order of the Probate Court confirming a sale of her father’s lands made by the administrator to pay debts. The court caused the writ to issue, but quashed it upon an inspection of the record.
It appears from the Clerk’s return to the writ that the Probate Court refused to order a sale of the lands upon the petition of Apperson, who was a creditor cf the estate. Apperson appealed to the Circuit Court and there obtained an order of sale. The administrator prosecuted an appeal from the judgment of the Circuit Court, but it was affirmed here. The cause was remanded to the Circuit Court and an order was entered there directing the administrator to make the sale at a time and upon terms named in the order. The original order of sale made by the Circuit Court had been certified to the Probate Court for execution, but no action was taken under it pending the appeal. The latter order was never certified to-the Probate Court, but the administrator offered the lands for sale in pursuance of the new direction of the Circuit Court,, and reported to the Probate Court that it had not been sold because no one had bid two-thirds of the appraised value. The report was received and approved, but no other order was made. Something more than a year thereafter, without further-authority from the court, the administrator offered the lands-for sale without regard to their appraised value ; and Apperson,. the creditor upon whose petition the order of sale had been made, became the purchaser at the sum of $17,000. No money-was paid on the purchase, but Apperson executed his notes-for the purchase money, and received from the administrator what is termed in the record, a certificate of purchase. These-proceedings were reported to the Probate Court and were there approved, when the administrator immediately resigned. No deed has been made.
The petitioner alleges that she was an infant during these transactions, and had no information of them; that the administrator was her guardian; that at the time the sale was-confirmed by the Probate Court, his condition of body and mind was such that he was incapable of protecting her interest that a part of the land which was sold was her father’s homestead at the time of his death; that it is described in the petition for, and in the advertisement of, sale, and in the administrator’s report of sale, as the “Burgett home place.” It also appears that Apperson was the only creditor of the estate at. the date of sale; that his debt amounted to about $10,000, principal and interest, and that a body of land comprising 1634. acres and appraised at $79,340, was offered in bulk to pay his. debt. These facts are substantiated by the Probate Court record, except as to the petitioner’s age and want of informa tion, and the condition of her guardian, which appear from the petition and by affidavit adduced at the hearing.
This proceeding was begun a short time after the petitioner was apprised of the facts, and within less than a year after she had reached the age of 18, which is the age of majority for females. The suit was begun three years and eight months after the order of confirmation.
The Circuit Court declared that the errors complained of did not render the sale a nullity, and for that reason declined to interfere.
That the Probate Court had no jurisdiction to sell the home stead during the minority of any of the decedent’s children is the settled law of this State. McCloy v. Arnett, 47 Ark., 445; Nichols v. Shearon, 49 ib., 75; Stayton v. Halpern, 50 ib., 329. But as that fact did not avoid the sale of the lands, which the court had jurisdiction to sell, and as the Circuit Court had no guide in this proceeding to separate the one from the other, it was not error to decline to interfere upon that ground and leave the petitioner to her action at law for the possession of the homestead tract.
It must be conceded that the Probate Court proceeded irregularly in every step taken in that tribunal after entering the Circuit Court’s order of sale upon its records; but none of the errors go to the jurisdiction of the court, and, consequently, its action is not void. The. errors are as follows:
It approved the administrator’s execution of the order sale without learning, from the record what disposition this court had made of the matter on appeal. The character of judgment it is to execute when an appeal has been prosecuted to the Circuit Court, should be ascertained from a certified copy of the record of that court; and if the matter is brought to this court for review, it should receive the certificate after the mandate of this tribunal has reached the Circuit Court. But, in this instance, the order of sale which had previously become the Probate Court’s judgment by entry there (presumably before the appeal here was sued out) was affirmed, and the jurisdiction of that court to execute it, which had been suspended by the appeal, was restored, at least from the time when the Circuit Court entered its order in accordance with the mandate. After that it was not without power to proceed. Green v. Clark, 24 Vt., 136; Durham v. Durham, 16 Gray, 577; Curtis v. Beardsley, 15 Conn., 318.
The court erroneously approved the offering of the lands for sale by the administrator, when no time had been previously fixed by it for a sale, and subsequently approved the report of the sale to Apperson made more than a year after-wards under like circumstances. But a sale upon a day other than that fixed by the order, if made in pursuance of a subsisting judgment of a superior court, is not a nullity after confirmation. It is an irregularity only, and like selling without notice of sale, or without notice of the application to sell, which the statute requires, does not render the sale void, according to a long line of decisions beginning with Borden v. State, 11 Ark., 12. The statute which requires that lands which have been offered by an administrator and not sold for want of a bid equal to two-thirds of their appraised value, shall not be re-offered within twelve months (Mansf. Dig., sec. 184), does not require a new order condemning the lands to sale. That judgment has already been entered in accordance with another provision of the statute (sec. 173), and the day fixed for its execution having passed, it only remains for the court to provide anew for its execution. (Secs. 174, et seq.) The sale and confirmation, after the expiration of the year, were not, therefore, made without a valid judgment to support them, and are not nullities.
But a want of jurisdiction is not the only defect that the writ of certiorari is capable of reaching. The statute prescribes that it may be used to correct erroneous proceedings as well as want of jurisdiction. Mansf. Dig., sec. 1368. The writ is granted in two classes of cases, first: where it is shown that the inferior tribu nal has exceeded its jurisdiction ; and, second, where it appears that it has proceeded illegally and no appeal will lie, or that the right has been unavoidably lost. Roberts v. Williams, 17 Ark., 43; Randle v. Williams, 18 ib., 383; Allston, ex parte, 17 ib., 580; Lindsay v. Lindley, 20 ib., 581; Derton v. Boyd, 21 Ark., 264; Vance v. Gaylor, 25 Ark., 32; Tucker v. Yell, ib., 420; Wyatt v. Burr, ib., 476; Payne v. McCabe, 33 Ark., 321; Pearce, ex parte, 44 ib., 314; Howard v. State, 47 ib., 439-40.
The cases in our reports in which it is said the writ cannot' be used for the correction of erroneous proceedings in the exercise of jurisdiction, are cases in which laches in not appealing - were imputable to the petitioner, and the question of jurisdiction alone was presented ; as in Carolan v. Carolan, 47 Ark., 511; Phelps v. Buck, as guardian, etc., 40 ib., 219, and Ry. v. Barnes, 33 ib., 95; or, as in the case of Haynes v. Simms, 39 Ark., 399, where the circumstance which prevented the appeal was probably (it was said) a valid excuse for not appealing, but the inferior court, which had jurisdiction, had proceeded' regularly, and there was a legal remedy which would prevent injustice if the party was really aggrieved.
Mere errors are never reviewable on certiorari at the instance - of one who has lost the right of appeal by his own fault, or who-neglects to apply for the writ as soon as possible after it becomes necessary to resort to it; and the aid of the writ is never" granted except to do substantial justice. It may be refused even where there are no laches on the part of the petitioner and errors are apparent upon the record, if the judgment appears upon the whole to be right; and even when prejudicial errors are apparent,, it will be refused if great public inconvenience will result from its issue. Moore v. Turner, 43 Ark., 243. It is upon these considerations that it is denominated a writ of discretion and not' a writ of right, and it is in part at least for the purpose of informing the conscience of the court for the intelligent exercise-of this discretion that the statute provides that testimony may be heard on the return of the writ. Rutland v. Commissioners, 20 Pick., 77; Hyslop v. Finch, 99 Ill., 179.
* It cannot be used as a substitute for appeal to correct errors where an appeal is provided, except by a party who could have appealed ; and as the heir is not made a party to the record in our probate proceedings to sell lands of a decedent, and cannot ordinarily prosecute an appeal (Arnett v. McCam, 47 Ark.), he cannot use the writ as a substitute for appeal. But the application to sell lands in' such cases is in the nature of a proceeding in rem. (Adams v. Thomas, 44 Ark., 267; Waples Pro. in Rem., secs. 578-9, 566), and as the heir is a party in interest, the court may upon his petition cause him to become a party to -the record, and so clothe him with the right of appeal. If he neglects to become a party he cannot use the writ of certiorari as a substitute for appeal. But if he has lost the opportunity of becoming a party and thereby of acquiring the right of appeal without his fault, he has lost his appeal without fault and may, within proper time, resort to the writ of certiorari. Derton v. Boyd, 21 Ark., 264. There is no statute limiting the period within which the court may grant the writ, but where the effort is to use it as a substitute for appeal, the time within which the appeal might have been prosecuted is adopted by analogy. But as this is not a binding rule, like the statute, the courts have not strictly adhered to it, but award the writ where the ends of justice demand it.
The question now is, ought the writ to be used for the petitioner’s benefit ? The statement of the case shows that no hardships will be entailed upon the purchaser. He has paid no money; and has received no deed, so that no one claiming under him could have been led to believe that he was the true owner. He was instrumental in procuring the sale in bulk of more lands than appear to have been required for the payment of his debt; he was a party to the record and is presumed to have known that irregularities existed, the natural tendency of which was to redound to his benefit by preventing others from bidding at the sale which he brought about.
Upon the other hand does the petitioner show a valid excuse for not becoming a party to the proceeding and prosecuting her appeal ? She was not apprised by the record that any time had been fixed for the sale of the land, and lost her right to take the necessary steps to prosecute an appeal from the judgment of confirmation, by the erroneous action of the court in confirming a sale made on a day not fixed by its order. But the defeat of an appeal by the erroneous action of the court, is one of the established grounds justifying a resort to certiorari. McMurray v. Milan, 2 Swan. (Tenn.), 176. Her guardian may be said to have had knowledge of the sale, because he was the administrator in whose name it was conducted, but the uncontradicted proof adduced at the hearing was to the effect that he was an imbecile at his hquse when the sale was made, incapable of attending to any business, and his resignation as administrator appears to have been prepared and held in abeyance only until the order of confirmation could be made. The petitioner was, herself, an infant of tender years, and appears to have acted without delay after arriving at years of discretion.
The court erred in refusing to quash the order confirming the sale to Apperson. The judgment will be reversed and the cause remanded, with instructions to do so. | [
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Cockrill, C. J.
The question which controls this proceeding is., the constitutionality of the seventh section of the act of April 28, 1873, which reads as follows :
“Where the determination of questions in controversy in such proceedings is likely to retard the progress of work on -or the business of such railroad company, the court or judge in vacation, shall designate an amount of money to be deposited by such company, subject to the order of the court, and for the purpose of making such compensation when the amount -thereof shall have been assessed as aforesaid, and said judge ..shall designate the place of such deposit. Whenever such deposit shall have been made in compliance with the order of the court or judge, it shall be lawful for such company to enter -upon such land and proceed with their work through and over the lands in controversy prior to the assessment and payment of damages for the use and right to be determined as aforesaid.
“In all cases where such company shall not pay or deposit <*the amount of damages assessed as aforesaid within thirty days after such assessment, they shall forfeit all rights in the premises.” Mansf. Dig., secs. 5464-5-6.
It is argued that this section attempts to authorize a proceeding which is prohibited by section 9 of article 12 of the-Constitution of 1874. That section is as follows: “No property, nor right of way, shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner in money; or first secured to him by a deposit of" money; which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.”
Prior to the adoption of the Constitution of 1868, the 48th. section of the fifth article of which, was similar to the section above quoted, there was no provision in the organic law-of this State requiring compensation to precede the appropriation of private property for public use. In the case of the-
C. &. F. Ry. v. Turner, 31 Ark., 494, Chief Justice English, in treating of the power of the Legislature under the Constitution of 1836, said there were expressions in the case of Martin, ex parte, 13 Ark., 198, which indicated that the learned Judge,., who delivered the judgment, was of opinion that it was incompetent even in the absence of such a provision, for the Legislature to stop short of providing for actual payment of compensation to the owner before his property could be appro--priated. He states it as his opinion, however, that that view is opposed to the clear weight of authority.
In jurisdictions where it was settled that all that could be-demanded by the owner of the property to be condemned was-provision for a remedy whereby he could certainly obtain compensation, a difference of opinion existed as to what remedy or provision was adequate to a legal certainty. In the case of-' C. & F. Ry. v. Turner, 31 Ark., sup., a bond with sureties, which was all that was demanded by the*statute in force prior to the Constitution of 1868, was held to be adequate. In Cal— ifornia, it was at one time held that, as the payment of compensation'need not precede the company’s entry upon the land -to be condemned, an act of the Legislature was valid which :.gave the right of entry for the purpose of constructing the road upon paying into court a sum of money sufficient to pay • the damages when assessed, or upon giving security to be approved by the court or judge (Fox v. West Pac. Ry. Co., 31 Cal., 538)) but in the subsequent case of Sawbone v. Belden, 51 Cal., 266, it was ruled that the bond with sureties which the act provided for, did not afford an adequate means of compensation because the judgment against the sureties might not be efficient. See, too, Davis v. Ry., 47 Cal., 519-21.
These are instances of the conflict of opinion on the subject. In addition to these perplexities, one of the inevitable re- . suits of making compensation 'in advance an unconditional prerequisite to the right of entry, put it in the power of a single individual upon any proposed line of railway to check its construction, if not to thwart the enterprise where time became material in the undertaking, by resorting to continuances, ■ changes of venue, new trials and appeals.
The provision of the Constitution above quoted treats of all these difficulties, and avoids the extremes of each. It affords protection to the landowner while taking from him the power to check unnecessarily the progress of public enterprise, by requiring in advance of any appropriation of his land, actual payment of compensation or what was deemed the most certain security therefor — that is, a deposit of money, instead of a bond with . sureties, as the statute formerly required. But when the landowner is secured in the manner required by t-he Constitution, the conditions of that instrument are fulfilled and the company is authorized to enter upon the land to construct its road without further delay. See St. Louis & S. F. Ry. v. E. & H. F. B. Co., 85 Mo., 307; Central Branch U. P. Co. v. Atchison, etc. Ry., 28 Kans., 453 S. C; Wagner v. Ry., 38 Ohio St., 32; Ry. v. Dyer, 35 Ark., 363.
But a question of more difficulty is how shall the amount of the security be fixed? Must it be “ascertained by-a jury of twelve men in a court of competent jurisdiction,” or does that clause of the Constitution refer only to the final assessment of -the compensation, leaving the Legislature free to provide another method for ascertaining the amount of security to be-demanded ? The probable design in inserting the clause as to jury trial in this connection, and its proper limitation as here used, may in some measure be elucidated by recalling the restrictions the Legislature could impose upon that privilege iá a statutory proceeding unknown to the common law; and also by referring to the established practice of the courts in taking security where the law required it as preliminary to the provisional possession of property taken from the owner, or one claiming to be the owner, under process of law in other proceedings, as well as those to enforce the right of eminent domain.
In the absence of an express provision on the subject, trial by jury in a proceeding to assess damages for appropriating a right of way, is not a constitutional right. It was not guaranteed in such cases by the Constitution of 1836. Railway v. Trout, 32 Ark., 17. The purpose, we must suppose, of introducing this provision into the Constitutions of 1868 and 1874, was, as is said by the Supreme Court of Ohio, of a like provision in the Constitution of that State, “ to enlarge the rights of the citizens by extending the right of trial by jury to a class of cases wherein it did not before exist. But,” continues the court, “ we can find no evidence on the part of the framers of the Constitution to fortify this extension of the right with immunities and privileges unknown in the history of the law relating to juries and not enjoyable in other cases wherein the right of such trial previously existed.” Reckner v. Warner, 22 Ohio St., 275.
Now, the right to have a jury fix the amount of security to be taken as indemnity against an act thereafter to be done, is an anomaly in other proceedings, and while that is not a sufficient reason for holding that the framers of the Constitution may not have desired to confer the right in this class of cases, the known practice of taking security in advance of the assessment of damages in these (see Gould's Digest, Chapter 140) as in other somewhat analogous cases, and the absence of any known evil to be corrected growing out of an abuse of the practice, furnish strong reasons for supposing that the word “secured,” when used in the Constitution, was intended to be re stricted to the sense in which it was commonly understood,, unless a different intention is indicated. “ Every word employed in the Constitution is to be expounded in its plain, obvious and common-sense meaning, unless the context furnishes some ground to control, qualify or enlarge it.” Story's Const., sec. 451.
Now, the framers of the Constitution and the people were familiar with the analogies of the law which permit a citizen to-be deprived of the possession of his property pending litigation, upon the execution by the adverse claimant of a bond with sureties in a sum sufficient to secure him against loss. The actions of replevin, and unlawful detainer, and suits in which one is ousted by a receiver appointed for the purpose, are familiar instances. In either case the owner is deprived of the use of his property, and may lose the property itself, by conversion, spoliation or destruction, and his protection is the security which the law demands in advance for his benefit. Security in such cases has but its common meaning of something given or deposited to make certain the fulfilment of an obligation, and it necessarily precedes the ripening of the obligation. The practice designed by the Constitution seems to have been framed in analogy to such proceedings, and to depart from the former practice in condemnation proceedings only in requiring a deposit of money in lieu of a bond with sureties. The requirement that a deposit of money shall be made to secure the payment of compensation to the landowner pre supposes that the time is not ripe for payment, else no provision for security would be needed.
It has been suggested that the clause means only a deposit of the assessment made by a jury in a condemnation proceeding as a provision for cases where the owner may refuse to accept the amount awarded as payment, or may be unknown, or not sui juris. It cerainly covers these contingencies, and might easily have been restricted to them, if it had been so intended. But the language employed does not restrict the meaning to such cases ; it is general- — compensation must be paid or secured in every case ; and, pending proceedings to condemn, it is for the Legislature to determine when the deposit by way of security may be made.
It is also suggested that the Judge may fix the amount of the security at a sum not sufficient to make “ full compensation.” The same objection may be urged to the assessment of a jury — on a second trial the award may be increased and so the deposit made in pursuance of the first verdict be insufficient to meet the final award. The expediency of submitting the question to one or the other is remitted to the Legislature. In’ either case the landowner has the further protection that his title is not divested, nor does the right to an easement vest in the corporation until the damages awarded by a jury are paid (C. and F. Ry. v. Turner, 31 Ark., sup.; Mansf. Dig., sec. 5466, sup.); and the deposit being a security also for compensation for any damages done in the attempted appropriation of the right of way, when the proceeding proves unsuccessful or is abandoned by the corporation, the owner may recover the deposit and retain his land.
The Ohio Constitution contains a provision almost identical with the one in question. The Supreme Court of that State in Wagner v. Ry., 38 Ohio St., sup., construed it as meaning that the right of entry by the company and the right to receive compensation by the landowner, are co-existent; and that when entry is made, the landowner is eo instanti entitled to receive compensation. But that conclusion seems to us to lay stress upon the first part of the provision in relation to payment of the compensation at the expense or in disregard of the subsequent provision as to the security to be given for payment. The latter is of equal dignity with the former, and entitled to the same consideration in construing the provision. The Su- . preme Court of Missouri, on the other hand, under a more restrictive constitutional provision declaiing that until compensation “shall be paid to the owner, or into court for the owner, the property shall not be disturbed,” hold that the company may enter pending an appeal, after paying into court the amount assessed by the jury, without giving the owner the right eo instanti to receive the money thus, paid, but that it remains on deposit as security for the judgment if it is affirmed, or as security for any judgment that may be subsequently rendered. See, too, A. T. & S. F. Ry. v. Schneider, 127 Ill., 151.
The act assailed in this case was passed, as was said in C. & F. Ry. v. Turner, 31 Ark., 494, to conform to the provisions of the Constitution of 1868, and has been steadily acquiesced in since the adoption of the present instrument. Many miles of railway have been constructed under it and many condemnation proceedings had where the entry was made before the judgment of condemnation — not a few of which have passed through this court without an intimation of the invalidity of any provision of the act; the Circuit Judges from the passage of the act have conformed their practice to the requirements of the provision that is now attacked; and finally, we have an affirmance of its validity by this court in the case of Niemeyer v. Ry., 43 Ark., 111, in an opinion by Judge Eakin, prior to the death of Chief Justice English. The state of the case was exactly that now presented, except that the landowner resorted to equity for an injunction instead of seeking his remedy through certiorari, as the petitioner here does. The court say that “ if the proposed action of the railway be authorized there can be no doubt of tfie power to arrest it by injunction;” and, after discussing other questions, and mentioning the fact that the only authority of the company in appropriating the right of way at that time was by virtue of a deposit of money made under the order of the court where the proceedings to condemn were pending, denied relief to the complainants. The question now presented is not argued by the court in that case, and we are asked for that reason to overrule the decision.
It is essential in any case that a prohibition upon the power of the Legislature should be certainly found in the Constitution to warrant the court in declaring a legislative act void; but where the act has been long acquiesced in by the legislative and judicial branches of the government,' the courts should be satisfied that it is repugnant not only to the express and unequivocal terms of the instrument, but to its intent and reason, before resorting to their extraordinary power of nullification. “Where a particular construction has been accepted as correct, and especially when this has occurred contemporaneously with the adoption of the Constitution, and by those who had opportunity to understand the intention of the instrument, it is not to be denied that a strong presumption exists that the construction rightly interprets the inténtion.” Cooley Const. Lim., 67; State v. Sorrells, 15 Ark., 664. Such matters are not entitled to controlling weight, for acquiescence for no length of time can legalize a clear usurpation of power, but when an examination of the Constitution leaves a doubt, the judges are warranted in looking to these extraneous matters for aid. We cannot draw from the language of the Constitution the plain and unmistakable meaning that the act in question is a usurpation, and therefore declare it to be a legitimate exercise of the legislative prerogative.
The act of the Circuit Judge in fixing the amount of deposit, is a step taken pending the suit to condemn; the landowner is interested in ascertaining the amount to be deposited, and is entitled to notice of the time and place of the proceed ing as of any other step taken in the cause in vacation. See Mansf. Dig., sec. 5212. But the appearance of the petitioner was a waiver of notice in this case.
Other questions have been argued by counsel, but the power of the Judge to act is the only one presented by this proceeding. So far as the plaintiff can litigate the other questions at0all, it must be by independent action in the appropriate tribunal, or by appeal from the judgment of condemnation.
The writ will be quashed.
Hemingway, dissento. | [
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Per Curiam.
The administrator of Nichols had the right to take the appeal from the judgment of the Probate Court in this case, and prosecute it to the same extent his intestate might have done. Trapnell, ex parte, 29 Ark., 60.
There is no bill of exceptions in the record. The paper purporting to be a bill of exceptions was not signed by the Judge and filed within the time first given by the court. The order fixing the time within which the bill of exceptions might be signed by the Judge and filed became final, and passed beyond the control of the court, when the term at which it was made expired, and the court had no authority to shorten or extend the time at a subsequent term. Mansf. Dig., sec. 5157; Carroll v. Saunders, 38 Ark., 216; St. L., I. M. & S. Ry. v. Rapp, 39 Ark., 558; Adler v. Conway County, 42 Ark., 488; St. L., I. M. & S. Ry. v. Holman, 45 Ark., 102; Myrick v. Alexander Merrett, 21 Fla., 799.
Inasmuch as the bill of exceptions, in this case, cannot be regarded as any part of the record, the questions presented by appellant cannot be considered.
Judgment affirmed. | [
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Per Curiam.
The company having permitted cotton-seed to accumulate on or about its track, was under obligation to maintain reasonable care to prevent injury to stock attracted thereby. Jones v. Nichols, 46 Ark., 207; Ry. v. Kirksey, 48 Ark., 366; Crafton v. Ry., 55 Mo., 580; Page v. Ry., 71 N. C., 222.
The burden was upon the company to overcome the prima facie case of negligence made by the killing, by showing that its servants had used the degree of care indicated by the charge, to avert the injury. The proof does not show that state of case, and the judgment will be affirmed. | [
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Hughes, J.
On the 1st day of August, 1885, appellant recovered a judgment against John C. Jones, one of the appellees, and the father of the other appellees, in Desha Circuit Court, in Arkansas, in the sum of $3661.93, and on the 23d of October, 1885, had an execution issued on said judgment, which on 23d of December, 1885, was returned unsatisfied. .He then filed his bill in equity to set aside as fraudulent and have declared void as to his debt certain conveyances of land which John C. Jones had procured to be made to himself and to his children by one Talmadge E. Brown. The bill was dismissed and he appealed. John C. Jones owned near Des Moines, Iowa, a forty-acre tract of land, which had been set •aside to him as a homestead, and which under the laws of that State could not be taken in execution for his debts. In November, 1877, J°bn C. Jones exchanged his forty-acre homestead with one Talmadge E. Brown for 1600 acres of land in what was then a part of Desha County, in the State of Arkansas, but which was afterwards attached to Arkansas County. He had the deed to the Arkansas lands made to himself, and ■conveyed his homestead in Iowa to Brown with an understanding at the time the conveyances were made, that he would visit Arkansas, examine the lands purchased of Brown, determine how he would divide them between his children, and that he would then cancel and deliver up Brown’s deed to him for the lands, and that Brown would thereupon make deeds according to his division of the lands, and his directions. He canceled in writing across its face Brown’s deed to him; he and his wife signed and acknowledged the cancellation and delivered the deed to Brown, who then made to John C. Jones a deed for 160 acres, and to his children deeds for 1440 acres of the Arkansas lands. Two of the children were minors. The lands were wild and unimproved. The father, John C. Jones, settled upon and improved and claims as a homestead the 160 acres conveyed to him. The only consideration for the conveyances from Brown to John C. Jones and his children for the Arkansas lands was the conveyance by John C. the father, of his homestead in Iowa to said Brown. No consideration moved from the children to the father. At the time John C. Jones made this exchange of lands with Brown, there was a subsisting, unsatisfied judgment against him in favor of appellant, Campbell, in Iowa, where his homestead was situated, and that judgment was the foundation of the judgment in Desha County, Arkansas, and was recovered in the Supreme Court of Iowa on appeal, March 18, 1875* No motion was ever made, or step taken to set aside, va.cate or modify the judgment recovered in Desha County, Arkansas, and no good reason is given for the failure by appellee, John C., to make such motion, or take such step, and yet he asks to be allowed to attack the judgment collaterally, which it is hardly necessary to say cannot be done. Appellees insist that the exchange of his homestead in Iowa for the lands in Arkansas was not made to defraud his creditors, but in good faith, and to procure homes for his children; that neither his homestead in Iowa, nor the proceeds of the sale thereof, when sold by him, could have been taken in execution for his debts; that he had a right to reinvest the proceeds of the sale of the same for the benefit of his family, and that the property purchased therewith could not have been taken in execution for his debts ; that his homestead in Iowa being exempt, there were no creditors as to it, and that any disposition he might have made of it would not have been a fraud upou his creditors; that having invested his homestead, thus exempt in Iowa, in lands in Arkansas for himself and his children, the lands in Arkansas taken in exchange cannot be taken in execution for this debt. It is also contended for appellees that the deed first made by Brown to John C. Jones, was an escrow, and that the title to the lands described therein did not pass thereby, nor until the conveyances were made by Brown to him and his children, according to John C. Jones’ division of the lands, and after the cancellation of the first deed.
But this theory is not supported by the evidenee, the preponderance of which, as to this, is, that the deed first made by Brown to appellee, J ohn C. J ones, for all the lands, was delivered to him directly. There is no evidence to the contrary.
It is well settled that a voluntary conveyance made to hinder, delay or defraud creditors, is void as to them, the grantor being insolvent without the property so conveyed. Driggs & Co.’s Bank v. Norwood, 50 Ark., 42; Adams v. Edgerton, 48 Ark., 419; Hershy v. Latham, 46 Ark., 542; Reeves v. Sherwood, 45 Ark., 520; Danley v. Rector, 10 Ark., 225; Leach v. Fowler, 22 Ark., 145; Bertrand v. Elder, 23 Ark., 494; Massey v. Enyart, 32 Ark., 251; Oliphant v. Hartley, 32 Ark., 465; Bennett v. Hutson, 33 ib., 762, 767.
But it is well settled, that “ it is incumbent on a creditor, who complains of fraudulent conveyance, to show that his debtor has disposed of property that might otherwise have been subjected to the satisfaction of his debt. Until this is done no injury appears.”
Creditors cannot complain that a conveyance of a homestead is fraudulent as to debts, for the payment of which it cannot be taken m execution. They could not reach it, if not conveyed, and hence the motives for the conveyance do not concern them. Stanley et al v. Snyder et al., 43 Ark., 430; Erb v. Cole & Dow, 31 Ark., 557; Clark and wife v. Anthony and wife, 31 Ark., 546; Meux v. Anthony, 11 Ark., 411; Hempstead v. Johnston, 18 Ark., 124; Bogan v. Cleveland, ante, 101.
But when the deed to the 1600 acres of land in Arkansas was made and delivered to appellee John C, Jones, the title thereto vested in him, and the same became liable, eo instanti, to sale under execution for the payment of his debts, except such part as he might be entitled to fix and claim a homestead upon. That it was not competent for him to divest the title thus acquired by simple cancellation and surrender of the deed first made to him by Talmadge E. Brown for the 1600 acres of land in Arkansas, is, we apprehend, well settled. Byrd et al. v. Jones et al., 37 Ark., 194; Talifero Ex., v. Rawlton, 34 Ark., 503; Neal v. Seigel, 33 Ark., 63; Strann v. Norris, 21 Ark., 80; 13 N. J. Eq., 143; 44 N. H., 438; 9 Pick., 107; 5 Conn., 262; 33 Ala., 264; 11 Mass., 332; 18 Cal., 491; 53 Wis., 36; 1 Glf. Ev., sec. 265; 4 Allen, 422; 7 Peters, 171; 47 Me., 308; 46 Barb. 122; 3d Head, 562.
The appellee, John C. Jones, is entitled to claim and have set aside to him, as a homestead, the 160 acres of land conveyed to him by Talmadge E. Brown and claimed by him as a homestead in his amended answer, and upon which he had fixed his homestead before the commencement of this suit, and before the recovery of appellant’s judgment in Desha County. More than this he could not claim under the Constitution and laws of Arkansas, which limit the homestead to 160 acres of land. The title to all the lands sought to be subjected to the payment of appellant’s debt having once vested in him, and become-subject to his debts (save that which he might claim as his homestead), the appellee, John C. Jones, could -not by cancellation of the conveyance to him and the procuring of conveyances to be made to his children, which were voluntary, defeat appellant’s right as one of his creditors, to have the land thus conveyed subjected to the satisfaction of his debt.
It is insisted that appellant’s right to relief was barred before the commencement of his suit, but the lands were wild and unimproved, and it follows from what has been said that no title ever vested in the children of appellee, John C. Jones, to the 1440 acres of land conveyed to them by Brown, as he had previously conveyed his title to John C. Jones, the father, in whom it still resides, not having been divested by the cancellation and surrender of the first deed made to him for all the 1600 acres of land, by Brown. Besides, in the answers filed by the children of John C. Jones to the appellant’s complaint, they aver that they did not know that deeds to the lands had been made to them until 1882. The complaint in this case was filed the 4th of February, 1886.
The decree of the Arkansas Circuit Court in chancery is reversed, with directions to the court below to enter a decree in accordance with this opinion. | [
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Per Curiam.
The decree is not final within the rule of the decision in Davie v. Davie, ante, p. 224.
The appeal is premature. Let it be dismissed. | [
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Humphreys, J.
Appellee instituted suit in the Monroe Circuit Court against appellant to recover $250 upon a certificate of membership issued by appellant to her daughter, Annie M. Barker, on November 7, 1918, insuring her life against death on account of certain kinds of sickness.' It was alleged that the certificate provided for the payment of that sum to her father, but, if dead, then to her mother, if the insured paid her dues and should die six years after the date of the policy. It was also alleged that the insured paid her dues regularly until her death, and that she died on September 8, 1920, subsequent to the death of her father.
Appellee filed an answer, admitting the issuance of a certificate of membership in its society, and the payment of dues thereon, but alleging that, under the provisions of the certificate and by-laws of the society, it was exempt from liability if the insured died of malaria, and liable for only ten per cent, of the face value of the certificate if she died of a chronic disease; that she died from the effects of either malaria or pellagra, and that pellagra was a chronic disease.
The cause proceeded to a hearing upon the pleadings and testimony, at the conclusion of which each party asked for a peremptory instruction. The court thereupon directed a verdict for appellee in the sum of $250. After the court decided the case on the merits, appellant requested other instructions, which were refused. In our view of the case it is unnecessary to set them out or state them in substance. An appeal has been duly prosecuted to this court from the verdict and judgment rendered pursuant thereto.
There was a clause in the membership certificate and by-laws of the society exempting appellant from liability for the death of the insured on account of malaria or chronic disease. The evidence was in conflict as to whether the insured died of malaria or pellagra.
Appellant testified that her daughter died from the effects of pellagra; that Dr.. Thornton, who attended her, said she had pellagra; that she had been well all her life until she became ill in July, 1920, before her death in September following.
Dr. Glephart testified that he was called as a physician to see the insured in September, 1920, and found her suffering from symptoms of pellagra.
Dr. Thornton, the regular attending physician of the insured in her last illness, on direct examination, testified that she died from the effects of malaria; that pellagra was a chronic disease; on cross-examination, however, he testified, “About two months previous to her death she developed all of the signs of an acute case of pellagra, but in about a month and a half these acute signs receded and she resumed her usual duties.”
Under the doctrine announced in the case of St. L. S. W. Ry. Co. v. Mulkey, 100 Ark. 71, and many later cases cited in the case of Weber v. Rodgers, 128 Ark. 25, and a very recent case of J. T. Fargason Co. v. Bank of Lepanto, ante, p. 361, the request made by appellant and appellee for a verdict in his favor, without requesting any other instructions before the court decided the case on its merits, was tantamount to an agreement on their part for the court to decide the issues of fact involved in the case. After the court granted their request and determined the issues of fact in favor of appellee, it was too late for appellant to request other instructions submitting the same issues to the jury. The effect of the original requests of the parties was to waive the right to have the issues of fact determined by the jury. This court must give the same effect to the direction of the trial court as is given to the verdict of a jury. The verdict of a jury will not be set aside on appeal if there is any substantial evidence to support it. There was evidence tending to show that the insured died from the effects of an acute case of pellagra. An acute disease, according to Webster, is one “attended with symptoms of some degree of severity and coming speedily to a crisis — opposed to chronic. ” And a chronic disease is one “continuing for a long time; lingering; habitual. ” Under this definition, an acate case of pel lagara would not come within the liability exemption clause in the policy and by-laws of appellant.
In the course of 'the trial the court permitted appellee to show the cause of the insured’s death by her attending’ physician, Dr. Gephart, but refused to permit appellant to prove the cause of her cleath by Dr. Thornton, who was the insured’s general attending physician in her last illness. The evidence of Dr. Thornton was excluded because the information elicited was information acquired by him while attending the insured in a professional character. Such information is a matter of privilege under sec. 4149 of Crawford & Moses’ Digest, and cannot be introduced in evidence without the consent of the patient or the patient’s representative. It is argued by appellant that appellee waived the right to object to the testimony of Dr. Thornton relative to the condition of the insured because she herself introduced the testimony of Dr. Gephart concerning the insured’s condition. This court has decided otherwise. Mo. & N. A. Ry. Co. v. Daniels, 98 Ark. 352; K. C. S. R. Co. v. Miller, 117 Ark. 396.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
Appellant instituted suit against appellee in the Dallas Circuit Court to recover $8,882.26, a balance alleged to be due him for selling a large tract of land belonging to appellee. Appellant alleged that he and his two associates, while engaged in the real estate business in Little Rock, Árk., effected a sale of 28,461 acres of land, situated in Union and Columbia counticp for appellee, the owner thereof, to William and Thomas Maloney, for $5.70 an acre, for which service they were to receive a commission of $1.20 an acre in the proportion of 60 cents an acre, to appellant and 30 cents an acre to each of his associates; that he received a payment of $2,563.60 on commission, leaving a balance due him of $8,820.80.
Appellee filed an answer alleging that it had paid appellant all it owed him under the terms of the contract, and denying any additional indebtedness to him on account of the sale of the said land.
The cause was submitted to the court sitting as a jury, upon the pleadings and evidence, which resulted in a judgment for appellee. From that judgment an appeal has been duly prosecuted to this court.
The facts, revealed by the record, are in substance as follows: On Julyl, 1916, appellant and his two associates, T. F. Patterson and R. A. Leavitt, real estate brokers, entered into an agreement to sell a large tract of land, estimated at 24,000 acres, in Union and Columbia counties, for appellee by Dec. 15, 1916, at $5.70 per acre, payable as follows: $4,500 cash, $5,000 on or before June 1, 1917, $10,000 on or before Dec.'1, 1917; $10,000 on or before Dec. 1, 1918; $10,000 on or before Dec. 1, 1919, and tbe balance on or before Dec. 1,1921, tbe unpaid purchase money to bear interest at the rate of 6 per cent, per annum from date until paid. The agreement was reduced to writing in the form of an option contract between appellee and one of appellant’s associates, T. F. Patterson. The contract provided that appellee should convey the land by warranty deed to the optionee or his assignee, in case the option was exercised, upon the payment of the cash consideration and the execution of notes covering the deferred payments, which were to be secured by a vendor’s lien on the land. The option contract covered the transaction in detail and is quite lengthy. Among other things it provided that appellee or grantor should be liable upon its warranty for only $4.50 per acre on that part of the land to which title might fail; also, that upon failure to pay the interest or any installment of principal when due, the vendor might declare all the deferred payments due; also that any forty-acre tract should be released from the lien for the purchase money upon payment to the vendor of $5.70 per acre thereon, in addition to any payment made on the whole purchase price, said payment to be credited on the last deferred payment of the purchase price. The option contract was signed on Oct. 18, 1916. On the next day, Oct. 19,1916, a letter was written by appellee to appellant and his associates for the purpose of reducing the brokerage agency to writing. The previous contract and option, given to T.’F. Patterson, are referred to in the letter. The letter is as follows:
“October 19, 1916.
“Messrs. T. F. Patterson, B. A. Leavitt, L. P. Coleman,
“Little Bock, Arkansas:
“Gentlemen: By previous arrangement with you an option is given to Mr. T. F. Patterson whereby he has the right to purchase, subject to certain conditions and limitations, the land of the Edgar Lumber Company, es7 timated at this time to he about 24,000 acres, at the price of $5.70 per acre, to be paid for in different installments.
“As an evidence of our previous contract, we now place in writing our obligation to pay you out of the purchase money received — provided the option given is exercised by the said Patterson — $1.20 per acre for such part of said lands as are so taken under said option. The payments are to be made as the several tracts are released from the lien for purchase money, and only as they are released from the lien, until the whole purchase pric'e is paid. At which time any amounts not paid you at the rates above, before, will be due and payable. If the said option is not exercised, we are under no obligation to pay you anything and will not pay the same, and the same will be due and payable only as hereinbefore mentioned, and we acknowledge no liability to you otherwise or under any other conditions.
“Without instructions from you to the contrary, of the amounts to be paid you as hereinbefore mentioned, 60 cents per acre will be remitted to L. P. Coleman, Little Rock, Arkansas; 30 cents per acre to T. F. Patterson, Little Rock, Arkansas; and 30 cents per acre to R. A. Leavitt, Little Rock, Arkansas, by our checks deposited in the United States mail to the addresses above mentioned.
“Yours truly,
“Edgar Lumber Company,
(Signed) “C. V. Edgar, President.”
“The foregoing writing is accepted and approved as a contract between the undersigned and the Edgar Lumber Company, with reference to the matters mentioned. This October 19, 1916.
(Signed) “R. A. Leavitt,
“T. F. Patterson,
“L, P. Coleman.”
Appellant and his associates showed the land to William and Thomas Maloney, citizens of Iowa and Nebraska, who took over the option, and in the exercise of it procured a deed conforming in every respect to the option contract. They organized a corporation, known as the Realty & Colonization Company, and conveyed the land to it. Appellee paid appellant' and his associates their commission out of the cash payment of $4,500 on the basis of $1.20 out of every $5.70 received by it from the Maloneys. Appellant sold one-third of his commission to the Realty & Colonization Company. Under the terms of the option contract and deed made to the Maloneys, the Realty & Colonization Company obtained releases to a certain number -of forty-acre tracts by paying appellee $5.70 additional per acre, and, out of the money thus received, appellee paid appellant his pro rata share of the commissions on the basis of $1.20 out of every $5.70, his pro rata share being 40 cents instead of 60 cents out of every $5.70 received, because he had sold one-third of his commissions to the Realty Company, as heretofore stated. Appellant was paid a total of $2,563.60 as his pro rata share of commissions out of the purchase money actually received by appellee. The total number of acres sold, as shown by the survey, was 28,461. The total number of acres released under the contract was 6,490. The number not released 22,105. Default was made on the deferred payments, and appellee foreclosed its vendor’s lien against the 22,105 acres not released. The land only sold for $84,000 at the foreclosure sale, less than $4.50 per acre. Appellee took a deficiency judgment against the Realty & Colonization Company, but the company had no property out of which to collect it. There was evidence tending to show that the Maloneys, the makers of the notes evidencing the deferred payments, were insolvent.
Judgment was rendered by the trial court, dismissing appellant’s complaint, on the theory, that his commissions were contingent on the payment of the purchase money. Appellant contends that the court erred in thus construing the contract. He insists that, under a proper construction of the contract, his compensation was earned when appellee made the deed to the Maloneys and ac cepted their notes for the balance of the purchase money; that the payment thereof was postponed until the purchase money was paid, or the vendor’s lien was enforced against the land. The brokerage contract was evidenced by two writings, the option signed on the 18th and the letter written and accepted on the 19th of October. These instruments must be read together to ascertain the purpose and intent of the contracting parties. When construed as one instrument, it is quite apparent that the fee to the brokers was contingent upon the collection of the purchase money. The letter states that the brokers shall be paid $1.20 an acre out of the purchase money received; also that the payments (the $1.20 an acre) shall be paid as the several tracts are released from the lien for the purchase money, and only as they are released from the lien, until the whole purchase price is paid. The written option provided the method by which a release might be obtained on a part or all of the land. Payment of the full consideration of $5.70 per acre on any cut-over forty-acre tract or more was the method provided for effecting a release from the vendor’s lien. The clause contained in the option, to the effect that appellee should be bound to the extent of $4.50 per acre only on its covenant of warranty, strongly indicates that it should receive that amount, in any event, out of the purchase price. Had the intention been otherwise, the covenant would have been drafted to cover the entire-purchase price. The general rules of law contended for by appellant, to the effect that a broker earns his compensation when he presents a purchaser ready, willing, and able to buy at the price and upon the terms specified, and that, unless the broker warrants the financial ability of the purchaser, the vendor, by accepting 'him, takes the risk of payment and burden of collection, are correct. These rules have no application, however, to cases where the brokerage contract makes the payment of the commission contingent upon the payment or collection of the purchase -money as in the instant case.
Appellant makes the further contention that, through the foreclosure sale and procurement of a deficiency judgment against the Bealty & Colonization Company, a release of all the lands from the vendor’s lien, within the meaning of the contract, was effected and the com-' missions were matured. “We do not think so. Our interpretation of the 'contract is that the maturity of the commission depended on the collection of a part, or all, of the purchase money in excess of $4.50 per acre, which appellee was to receive first. Of course the duty rested upon the appellee, when default was made, to endeavor, in good faith, to collect the purchase money. It is true, the land brought less than $4.50 an acre at the foreclosure sale, but it is not shown that the price was influenced through connivance or fraud of appellee or its agents. Neither was it made to appear that the deficiency judgment was collectable, nor that the balance of the purchase money could have been collected by legal proceedings, from the Maloneys, the makers of the notes.
No error appearing, the judgment is affirmed. | [
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Smith, J.
Appellant was convicted of carnally knowing Pernie Braswell, a female under the age of sixteen years, and has appealed.
The prosecutrix did not expressly testify that appellant was the father of her child, which she produced in court and which she testified was horn on April 16, 1922, hut, on her direct examination by the prosecuting attorney, a showing was made of act of sexual intercourse with defendant at about the time when conception must have taken place.
The prosecution did attempt, however, to fasten the paternity of the child on appellant through the testimony of a Mrs. Dixon.
This witness testified that appellant told her, before the child was born, that he was its father. On her cross-examination she was asked if the prosecutrix had not stated to her that appellant was not the father of the child; that Joe Holt was its father, but that she would go to hell before she would put it on Joe.
The defendant denied he had ever had sexual intercourse with the prosecutrix; he denied that he had ever gone with her, and the girl admitted that defendant had never visited her, and her. parents, who were witnesses in the case, also admitted that they never knew defendant to pay their daughter any attention. The prosecutrix admitted that defendant had never courted her and that she never loved him, and the defendant attempted, by his cross-examination of her, to show that Joe Holt had been and was her sweetheart, and that she was in love with him; but the court held this testimony incompetent. It was the theory of the defense that the prosecutrix had become pregnant by Joe Holt, and that she sought to protect him by falsely accusing defendant.
The defendant asked the prosecuting witness, on cross-examination, if she had not had sexual intercourse with Joe Holt, and an objection to that question was sustained. The defendant also' offered to prove by certain witnesses that Joe Holt had had sexual intercourse with the prosecutrix, and offered to prove such acts of intercourse about the time the child was begotten; but the court excluded this testimony.
The defendant undertook to show that during the summer of 1921 (this being the time when the prosecutrix testified defendant had intercourse with her) he was in Kansas City, and that he did .not return until eight months before the child was born..
■ Defendant also called the physician who delivered the child and asked him what the ordinary period of gestation was, and whether the child was fully developed at the time of its birth and appeared to be a normal, fully developed child; but the court excluded this testi.-. mony.. , "
It appears, from the above recitals, that the judgment of the court must be reversed. Defendant should have- been allowed to ask the prosecutrix about acts of intercourse with other men for the purpose of impeaching her character as a witness. This was, of course, a collateral matter, and her answers, whether true or false, would have concluded the inquiry so far as impeaching her character as a witness was concerned. King v. State, 106 Ark. 160; Howell v. State, 141 Ark. 487; Jordan v. State, 141 Ark. 504; Davis v. State, 150 Ark. 500.
But this cross-examination was also competent, under the facts of this case, as bearing on the paternity of the child. The State had attempted to show the defendant was the father of the child by his own admissions to that effect, and by the testimony of the prosecutrix that the acts of intercourse occurred about the time conception must have taken place.
We recently had occasion to consider the rule of evidence in the circumstances stated in the case of McDonald v. State, ante p. 142. It was there said: “It is a well established doctrine that in prosecutions for carnal abuse, the prosecutrix being under the age of consent, her illicit relations with other men, showing want of chastity, are immaterial, because in such a prosecution the chastity of the prosecutrix is not in issue and testimony tending to prove specific acts of sexual intercourse with others than the accused is not relevant. Pleasant v. State, 15 Ark. 627; Plunkett v. State, 72 Ark. 409; Renfroe v. State, 84 Ark. 16; Peters v. State, 103 Ark. 119; Davis v. State, 150 Ark. 500. But the doctrine seems to be equally well established, as shown by the above authorities, that where the State undertakes, on direct examination, as was done here, to corroborate the testimony of the prosecutrix by introducing a child which she testified was the result of the sexual intercourse with the accused, then testimony introduced by him in rebuttal, tending to prove that another might have been the father of the child, is competent and relevant. The logical tendency of such testimony would be to break down the credibility of the prosecuting witness on an issue which the State has elected to bring forward as material to the cause. Before such testimony becomes relevant, however, it devolves-upon the appellant to show that the alleged acts tending to prove sexual intercourse with another occurred about the time conception took place. The testimony, in other words, to be competent must tend to contradict and rebut the testimony elicited by the State on the direct examination of the prosecutrix.”
While it is true here that the prosecutrix did not expressly state that defendant was the father of the child, this was a reasonable inference from her testimony. But the State did undertake to corroborate the testimony of the prosecutrix as to the acts of intercourse by having Mrs. Dixon testify to an alleged admission of defendant that he was the father of the child; and, as defendant denied making this admission, he should have been allowed to prove that another might have been the father of the Child.
In this connection it is proper to state that defendant should have been allowed to show by Mrs. Dixon, as he proposed to do, the admission of the prosecutrix that defendant was not the father of the child.
We think error was committed in refusing to permit the- physician to answer the questions set out above, as the answers thereto were relevant and material in determining the child’s paternity, a question which the State had elected to put in issue by the testimony of Mrs. Dixon.
The-court properly refused to permit defendant to prove general acts of intercourse between the prosecutrix and Joe Holt. Such testimony should have been limited to the period of time when conception probably occurred, and was competent for that purpose only because the State had put in issue the paternity of the Child.
To recapitulate: The chastity of the prosecutrix is not in issue in prosecutions under the carnal abuse statute; and while the prosecutrix may be asked, on her cross-examination, about other illicit intercourse, this is only for the purpose of impeaching her as a witness— a circumstance to be considered by the jury in passing upon the credibility of the witness. But, as the matter is collateral to the main issue, her answers, whether true or false, conclude the inquiry. So also the defense may not show acts of sexual intercourse between the prosecuting witness and other persons, as the “et tu” defense does not obtain, as was said in the case of Plunkett v. State, 72 Ark. 409. If, however, the State elects to attempt to corroborate the prosecuting witness by showing that a child was begotten by the illicit intercourse charged in the indictment, then defendant may show acts of sexual intercourse with other persons about the time conception took place for the purpose of rebutting this testimony. The State made that effort here, and the defendant should therefore have been allowed to rebut that testimony by showing that some other person was the father of the child.
For the errors indicated the judgment is reversed, and the cause remanded for a new trial. | [
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Humphreys, J.
This is an appeal from a decree of the Union Chancery Court, dismissing appellant’s complaint for the want of equity. Appellant instituted suit in ejectment against appellee in the circuit court of said county, alleging that he owned an undivided one-sixth interest in the N. W. % N. W. %, sec. 1, and the N. E, 1/4 N. E. i/4, sec. 2, tp. 19, S., R. 15 W, deraigning his title, through mesne conveyances, from the government; that, by virtue of his ownership, he was entitled to the possession thereof, but that appellee unlawfully held same adversely to him. Appellee filed an answer denying each and every material allegation in the complaint, and, by way of further defense, pleaded an equitable estoppel, which latter plea carried the case to the chancery court, where it was tried upon the pleadings 'and evidence introduced by the respective parties.
The facts revealed by the record, necessary to a determination of the issue involved on this appeal, are as follows: The land was conveyed by the government to J. E. B. Summers, who died intestate in the early fall of 1898, leaving six heirs, one of whom, Robert Summers, was yet unborn. This posthumous child attained to the age of 21 years on the 21st day of July, 1920, at which time he conveyed an undivided one-sixth interest in said land, for valuable consideration, to his brother-in-law, L. A. Ripley, the appellant herein. According to the undisputed testimony of O. P. Wood, which was competent, although objected to by appellant, he bought the land through J. E. B. Summers from his wife, Laura Summers. He testified that late in the summer of 1898, at the instance of Mr. Summers, he went to look at the land; that he spent the night with Summers; that Summers told him he had conveyed the land to, his wife, Laura Summers, because he was involved financially; that he liked the land, and was inclined to buy it; that early in the fall Mr. Summers came to El Dorado, and, as agent for Ms wife, sold Mm the land; that he agreed to pay him $300 for it, pgrt cash and part on time; that in a few days Mr. Summers died, and within 15 or 20 days thereafter his wife, Laura Summers, in accordance with the verbal contract made with Mr. Summers, executed a bond for title to said land to him for $100 cash and $200 on time, evidenced by his two promissory notes; that he took possession within thirty days, and resided upon the land continually thereafter until October 3, 1918 or 1919, at wMch time it was conveyed by his wife, to whom he had conveyed it oil August 18, 1909, to the appellee; that during the time he occupied it he placed improvements upon it to the value of about $1,800; that on December 6, 1900, he paid Laura Summers the balance of the purchase money, and obtained a deed from her of that date to the land, which he placed of record; that he was induced to buy the land upon the representations of J. E. B. Summers and his wife to the effect that he had conveyed it to her and that she was the owner of it'; that he purchased it in good faith, relying upon the representations as true; that he occupied and improved it thereafter, believing in good faith that he and his wife were the true owners. At the time appellees purchased the land he took immediate possession and, in good faith, believing himself to be the sole owner, made improvements thereon to the value of $400 or more.
The vital question presented by this appeal is, whether appellant is precluded, by the facts thus detailed, from recovering an undivided one-sixth interest in said land. The common source of title is J. E. B. Summers. If he estopped himself, by his representations, from ever thereafter asserting any interest in or to said lands, then his privies in blood and estate would also be estopped. J. E. B. Summers represented to the purchaser from his wife that she was the owner of the land, and through that means effected the sale. We think he clearly estopped himself by making this representa tion, which, was relied upon by the purchaser, from setting up any claim in his lifetime to the land. The undisputed facts bring the instant case within the rule of equitable estoppel announced by this court in the case of Jowers v. Phelps, 33 Ark. 465, and approved in the case of Baker-McGrew Co. v. Union Secd & Fertilizer Co., 125 Ark. 146, which rule is as follows: “A party who, by his acts, declarations, or admissions, or by failing to act or speak when he should, either designedly or with wilful disregard of the interest of others, induces or misleads another to conduct or dealings which he would not have entered upon but for this misleading influence, is estopped to assert his right afterward, bo the injury of the party so misled.” The successors in title to J. E. B. Summers occupy exactly the same position he had in his lifetime. Appellant being his privy in estate, he must fail.
The judgment is therefore affirmed. | [
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Wood, J.
The appellant was indicted by tbe grand jury of Garland County of tbe crime of murder in the first degree in the killing of. one' Tom Fielder. He' was tried, and, from a judgment of conviction for voluntary manslaughter and sentence fixing his punishment at six years’ imprisonment in the State Penitentiary, he duly prosecutes this appeal.
1. The testimony for the State, giving it its strongest probative force in favor of the verdict, tended to prove substantially the following facts: During the month of October, 1921, John Lewis (hereafter called appellant) at about the hour of 12:30 was in the wagon yard of one Fulfer, in the city of Hot .Springs, Garland County, Arkansas, negotiating with Fulfer for the purchase of a shotgun. A few minutes after .appellant went into the wagon yard, one Fielder (hereafter called deceased) walked in.. The deceased walked up to where appellant and Fulfer were standing. Two other gentlemen were standing off to one side, and the deceased said to them, “I want you two gentlemen to walk up here 'and hear what I have to say to this man. ’ ’ They stepped up within something like six or eight feet of the deceased and the deceased then said: “What have I ever said or done that you are telling my neighbors that you are going to put me behind the walls?” and appellant said, “If I knew enough, or I know enough, I will damn sure put you there.” When appellant said that deceased made a grab at appellant’s arms and caught him by one of them. Appellant jumped back and turned around — “sort of turned his back” to deceased — and deceased still held to appellant. After deceased grabbed the appellant, the latter drew his gun and shot right under deceased’s left arm. After the first shot they went about ten or twelve feet backwards — sort of turned as they went. Then appellant fired the second time. When the second shot was fired deceased had hold of appellant’s arm — the arm in which he held the gun — -and was pushing the arm back. Appellant pushed this arm around under the deceased’s side and shot the second time. When appellant pulled the trigger the gun was right up against deceased’s body. As appellant brought his arm. around the deceased’s body Fulfer hollered at appellant “Don’t do that,” but the appellant shot the deceased. After the deceased was shot appellant said to him, “Tom, turn me loose,” and the deceased replied, “I will when I am dead.” These remarks were made just before appellant shoved the deceased loose from him. The deceased spoke no more, and expired in a short time thereafter.
The deceased was about fifty years old and weighed between 150 and 160 pounds. The appellant was thirty-four years old and weighed about 200 pounds.
There was testimony for the State tending to show that the deceased had incurred the ill-will of appellant about a year before the killing, which continued down to the time thereof. That was evidenced by certain threats and remarks in the nature of threats made by the appellant concerning the deceased, which we will refer to later.
The testimony for the appellant tended to prove that while he and Fulfer were talking about the sale of the shotgun the deceased walked up and said he wanted to know why appellant had been talking about him. He then called to men standing by to walk up and hear what he had to say to appellant. Appellant asked the deceased what he 'bad said 'and deceased replied, “You said you know enough to put me behind the bars.” Appellant replied “I don’t want to have any trouble with you.” Deceased then walked up closer to appellant and repeated what be had said. Appellant replied, “You know what I know about you; I have got to go to Little Rock as a witness and if I am asked I will tell the truth about what I know. ’ ’ Deceased was then five or six feet away from the appellant, and appellant turned aWay from him, and as he did so, deceased struck appellant a lick, staggering him back some four or five feet. Before appellant straightened deceased grabbed him over the right shoulder and struck him four to six times. Appellant could not tell what the deceased was striking him with, but deceased struck him twice in the same place. Appellant tried to pull loose, and they went something like fifteen- feet. After deceased struck appellant the latter pulled his gun out of his pocket and fired. He did not shoot at deceased that time, but told deceased two or three times to turn him loose. Appellant thought after he fired the first shot that deceased would turn him loose, but deceased held on to appellant. Appellant pulled deceased almost back to the end of the wagon yard, going as far -as he could, then came back the same way ten or fifteen feet. They must have gone fifty or sixty feet altogether. Then appellant fired the second time!
The appellant testified that after he had tried to get away every way he could, the thought struck him that deceased wanted to prevent appellant from telling what he -knew about the whiskey business. The wagon yard, where the shooting occurred, had the reputation of being “a sort of headquarters for the bootleggers.” Appellant had seen a load of whiskey started to that yard one time that belonged to a man who helped run the yard. The testimony of the appellant tended to prove that in June previous to the killing a horse had run away with him and he had broken his arm; that he had not had much use of that arm since, and that at the time of the encounter he was not -able to do any hard physical work. Appellant had ascertained that the deceased was in the whiskey business before the deceased moved from the country to Hot Springs. There was testimony that when he was killed, deceased had on his person a beer bottle about one-third full of corn whiskey; that he whs a powerful man physically, and had the reputation of being quarrelsome and overbearing. There was testimony for the State in rebuttal tending to prove that the deceased had the reputation of being a man of peace and quietude. The above is substantially the testimony for the State and the appeallant upon which the verdict was rendered.
The appellant contends that the evidence was not sufficient to sustain the verdict and that this court should so declare as a matter of law, but we are convinced that the issue as to whether or not appellant was guilty of the crime of which he was convicted was one of .fact and not of law. The verdict of the jury is conclusive on this issue of fact.
2. Jesse Rowe, one of the regular panel of the petit' jury, on his voir dire examination, stated that, while he had formed and expressed an opinion as to the guilt or innocence of the defendant from reading the newspapers, yet he could discard such opinion and try the case solely according to the law and the evidence. He further stated that he had been an intimate friend of the appellant for a number of years, and that for that reason he might possibly be biased in appellant’s favor. The court excused him from service on the jury for cause.
Appellant contends this was reversible error. The record shows that out of the regular panel the court excused nine for cause. Four were peremptorily challenged by the State, and seven were challenged by the appellant: Four were accepted by the parties. The regular panel being then exhausted, the court ordered a special venire of fifty names to be drawn from the names of the tales-men who were selected by the jury commissioners. Of these, ten were excused by the court for cause, seven were peremptorily challenged by the-appellant, and eight were accepted by the parties, which completed the trial panel.
It thus appears that appellant exhausted only fourteen of the twenty peremptory challenges allowed him by law. Appellant therefore does not show that any incompetent juror was thrust upon him. In Decker v. Laws, 74 Ark. 286, we said: “But, since appellants were not entitled to have any -particular juror, the erroneous rejection of the talesman was not prejudicial, in the absence of a showing that some biased or incompetent juror was thrust upon them. Vaughan v. State, 58 Ark. 353.”
3. The State was permitted to prove, over the objection of the appellant, that in the spring of 1921 the appellant, in speaking of the deceased and Wash Lewis, the .brother of appellant, said,- “Well, by Gr-, I ought to go and have them arrested. No; I just ought to take my gun and go and kill them like damn dogs.” The witness was further permitted to testify that when appellant met the deceased and Wash Lewis he also said to the deceased, “Mr. Fielder, by Gr — —, I don’t want no trespassing or anything like that on my land. You be sure 'and keep the road. ’ ’ On this occasion appellant followed deceased 12 or 15 steps with his shotgun. Deceased replied to appellant, “Now, John, we don’t want no trouble.” Witness further testified that appellant nailed a notice up on a tree, which, according to witness’ recollection, read as follows: “No trespassing, in no way regardless, or any one will be dealt with right'on the spot.”
A witness, over the objection of the appellant, was also permitted to testify that, in a conversation about six months prior to the killing, appellant stated that he was going to send Wash Lewis and Tom Fielder to the penitentiary, and the court refused to'permit the appellant, on cross-examination, to elicit from this witness the fact that the deceased was a bootlegger and moonshiner. Over the objection of appellant, the court permitted another witness to testify that he heard appellant say that there were only two men he would like to see go to the penitentiary and they were the deceased and Wash Lewis. The court also, over the objection of appellant, permitted Wash Lewis to testify that appellant tacked a notice on a tree, which notice contained the numbers of the land on which it was posted, and stated that anybody trespassing or coming over the line would be dealt with on the spot. The court, also over the objection of appellant, permitted the prosecuting attorney to ask appellant on cross-examination whether or not he had bought whiskey from one Greorge Mulhollan, and also whether or not he had furnished Mulhollan money to put up and operate his distillery,
The appellant duly saved his exceptions to the rulings of the court above mentioned and preserved his ex ceptions in his motion for a new itxial. There was no reversible error in any of the above rulings.
In McIlroy v. State, 100 Ark. 301-311, we said: ‘ ‘ Testimony of threats made by the defendant against the deceased prior to the homicide are admitted for two purposes : They are admissible for the purpose of throwing light upon the defendant’s motives, and in proof of malice and premeditation on the part of the defendant. * * * "When other facts and circumstances have been adduced in evidence connecting the defendant with the commission of the crime, then threats made by him against the deceased prior to the homicide become links in the chain of evidence showing his guilt.”
Now, there was testimony tending to prove that the ill-will and hostility which existed between the appellant and the deceased had not abated, but had continued down to the time of the killing. Of course, the direct threats and the declarations in the nature of threats, under the rule announced above, were admissible. “Every declaration,” says Mr. Wharton, “which indicates, however vaguely and indefinitely, an intention upon the part of the person making it to inflict violence upon another is a threat within the meaning of these rules; and a threat to prosecute for a violation of law has been held to be an admissible threat. * * * So, language used by the accused against the deceased expressing hostility and dislike is admissible in a prosecution against him for killing the deceased, though it did not amount to threats.” Wharton on Homicide, § 602, p. 931. Under the above rule the testimony in regard to sending the deceased to the penitentiary and to the effect that appellant would like to see the deceased go to the penitentiary was relevant and therefore admissible. The testimony concerning the posting of the notice could not have prejudiced the rights of appellant, in view of the proof of direct threats.
The court did not err in permitting the prosecuting attorney, on cross-examination of the appellant, to ask him whether or not he had bought whiskey from one Mulhollan and whether or not he had furnished Mulhollan with money to buy and 'operate a distillery. ‘ ‘ The accused in a criminal case may, for the purpose of testing his credibility, be questioned on cross-examination as to his having been a gambler, and as to other offenses and immorality.” Second syllabus, Shinn v. State, 150 Ark. 215, and cases there cited. When the appellant took the witness stand in his own behalf, he became subject to the above rule.
4. Appellant offered to prove by witness E. E. Burke that at the home of appellant the summer before the killing he heard the deceased and the wife of appellant talking, and deceased said, “If I ever catch him just right, I am going to give him a good clouting.” Witness understood that the deceased was talking about the appellant, although he would not swear that he heard him mention appellant’s name. Witness stated that the deceased did not call appellant’s name directly but that it was understood that deceased was talking about the bunch of people. It was witness’ understanding that deceased was talking about the appellant. It will be observed that the witness would not swear that the deceased was talking about the appellant. Therefore, the court did not err in rejecting the testimony. Deal v. State, 82 Ark. 58; Hobbs v. State, 86 Ark. 360.
5. In instruction No. 8 the court, after correctly defining manslaughter in the language of the statute, told the jury in the concluding portion of the instruction that “unless it appears from the evidence that there was a provocation sufficient to make the passion irresistible” the crime could not be reduced from murder to manslaughter. The appellant urges that this instruction was erroneous because it omitted .the word “apparently” before the word “sufficient” in the portion above quoted. There was no specific objection to the instruction, and when the first part of the instruction correctly defining voluntary manslaughter is read in connection with the concluding portion quoted, it is clear that the instruction was not inherently erroneous. The appellant therefore should have called attention to the incorrect phraseology of the concluding portion quoted by specific objection. The same likewise applies to instruction No. 11 , of which the appellant here complains. Guerin v. State, ante 50.
The appellant objected to the ruling of the court in giving instruction No. 9 on the ground that it excluded from the consideration of the jury any state of facts that may have seemed to the appellant to be true. The instruction, taken in connection with the other instructions, could not have misled the jury.
The appellant objects to instruction No. 13, his objection being that the instruction was abstract, but we do not so regard it. It is unnecessary to set the instruction forth at length. It correctly declares the law relating to self-defense and manslaughter in conformity with many rulings of the court on that subject, and is not abstract.
The appellant also urges that the court erred in failing to instruct the jury explaining the difference between voluntary and involuntary manslaughter. Appellant did not ask the court to give such an instruction. See Guerin v. State, ante p. 50; Price v. Greer, 29 Ark. 300.
Besides, an instruction nn involuntary manslaughter would have, been clearly abstract because there was no testimony to warrant such instruction. '
The court did not err in refusing to grant appellant’s prayer for instruction No. 3 . This instruction was not a correct statement of the law of self-defense, and such portions' of it as were correct were covered in other instructions which the court gave on that subject.
6. One of the grounds of "appellant’s motion for a new trial was the newly discovered evidence of his brother, McKinley Lewis, and his sister-in-law, Hattie Lewis, to the effect that violent hatred existed on the part of the deceased toward the appellant, and that the deceased intended to “get him,” meaning thereby to kill the appellant. The court might have found that this evidence of appellant’s brother and sister-in-law could have been discovered and produced at the trial if proper diligence had been exercised. The court did not abuse its discretion and did not err in refusing appellant’s motion for a new trial on the ground of newly discovered evidence. Adams v. State, 100 Ark. 203; Young v. State, 99 Ark. 407; Osborne v. State, 96 Ark. 400.
After a careful consideration of the record, we are convinced that there are no errors in the rulings of the trial court which call for a reversal of the judgment. Therefore, let the judgment be affirmed.
“11. If you are convinced from the evidence beyond a reasonable doubt that the killing was not done in self-defense as explained in these instructions, but you believe that it was done under a sudden heat -of passion or on a sudden impulse caused by terror or fear on account of an assault by the deceased, and the circumstances were sufficient to make the passion or the impulse irresistible, you should find the defendant guilty of manslaughter.” (Rep.)
“9. If you believe from the evidence, beyond a reasonable doubt, that Tom Fielder assaulted the defendant, but there was no cause, under the circumstances of the case at the time, for the 'defendant to believe that he was in any danger of being killed or of receiving serious bodily injury at the hands of Fielder, but you believe from the evidence beyond a reasonable doubt that the defendant, on account of ill feeling or malice towards the deceased, and not in an honest effort to protect himself, shot and killed the deceased, he would be guilty of murder in the second degree.” (Rep.)
“3. In order to justify the killing of Fielder by defendant, it is not necessary that the danger to defendant should have been real. If you find that the defendant believed it to be real, was justified as a reasonable man in so believing, your verdict should be not guilty.” (Rép.) | [
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Humphreys, J.
This suit was instituted by appellant against A. J. Yail, doing business under the name of Yail Cooperage Company, to recover damages in the sum of $3,000 for an injury received while attempting to couple a standard flat-car to an engine, through the alleged negligence of appellee. Appellant alleged that he was an employee of appellee as fireman and brakeman, that appellee was a common carrier, and as such negligently failed to supply him with sufficient machinery to perform his duty, and negligently furnished him a defective engine and other appliances and equipment. The allegations bring the suit within act 88 of the Acts of the General Assembly of 1911, which was entitled, “An act regulating liability of employers for injuries to employees.”
The cause was submitted upon the pleadings and testimony, at the conclusion of which the court, over the objection and exception of appellant, peremptorily instructed the jury to return a verdict for appellee. The jury complied with the direction, and the judgment was rendered in accordance therewith.
From the instructed verdict and judgment an appeal has been duly prosecuted to this court. Appellants insist that the court erred in finding, as a matter of law, that appellee was not a common carrier within the meaning of act 88, Acts of the Legislature of 1911. It is ar gued that section 4 of the act, now section 7141 of Crawford & Moses’ Digest, changes the meaning of “common carrier ’ ’ as defined by this court, so as to make a person operating a train or log-road, upon rails or tracks, in whole or in part in this State, a “common carrier” or “common carrier by railroad,” whether he operates it as owner, contractor, lessee, mortgagee, trustee, assignee, or receiver. The majority of the court do not think the general definition of a “common carrier” or a “common carrier by railroad” was modified or changed by the act. Had the Legislature intended to enlarge the general definition of “common carrier,” so as to include logging railroads, it would not have used the words “common carrier” in the defining clause. The word cannot be defined by the use of the word itself.. The intention of the apt was to bring common carriers, as generally defined, operating railroads wholly in this State, under the terms and provisions of the act. In other words, the intention was to impose liability upon any common carrier, operating a railroad in whole or in part in this State, for personal injuries resulting to an employee occasioned through the negligence of employer or its representatives, in the various ways set out in the act, even though the employee was guilty of contributory negligence, or knew of the dangers incident to the master’s negligence. The act eliminated the defenses of contributory negligence and assumed risks in .actions brought under its. provisions. Again, appellant argues that the testimony introduced by him not only tended to show that appellee was a common carrier within the general definition, but also tended to show negligence on the part of appellee as defined by the act. A general definition of “common carrier” was correctly announced in the case of Arkadelphia Milling Co. v. Smoker Merchandise Co., 100 Ark. 37. It is as follows: “ In order to constitute one a common carrier,, the business as such must be regular and customary in its character, and not casual only. An occasional undertaking to carry goods will not make one a common carrier. But the business of carrying must be conducted as a business, and must be of such a general and public nature that a' person carrying it on is bound to convey goods of all persons indifferently who offer to pay for the transportation thereof.” The record reflects that appellee owned and operated a railroad of standard gauge, with steel rails laid on cross-ties; that he owned and used three engines, “dollie” and flat-cars, also used standard flat-cars of a connecting line; that the railroad was about ten miles in length, including two branches; that he operated the railroad primarily to haul logs to his mill at Marmaduke, but he hauled freight for others.
Appellant testified, in substance, that the business of the railroad was to haul for people out on the line and for people in town; that they hauled logs, lumber, groceries, hay and a general routine of stuff that came to be hauled, and received pay for hauling same.
J. C. Golden testified that, as manager of the Melon Growers’ Association, he shipped twenty or thirty cars of melons over the railroad owned by Yail, for which he paid $15 a car.
Will Carpenter testified that he shipped from fifteen to twenty cars of hay and corn over the Yail railroad in one year, for which he paid $15 a car..
Alfred Moore, Henry Yanderbuilt, Walter Chaney,Nathan Cohn and Ed Franks testified that the company hauled logs for itself and logs, lumber and freight for others.
Floyd Deck, who was the engineer for the company during a period of ten months, testified that, as far as he knew, Yail did a general hauling business over his railroad.
The testimony detailed above tended to shów that the hauling was indiscriminately done, and was of a public nature. Testimony was introduced by appellee to the contrary.
Under the testimony, the question of whether the Vail Cooperage Company was a “common carrier” became a question of disputed fact, and should have been submitted to the jury for determination.
The testimony introduced by appellant tended to show that the injury was caused by the failure of appellee to furnish a properly equipped engine and necessary appliances to couple a standard flat-car to the engine. The statute made it negligence for a “common carrier,” operating a railroad upon rails or tracks, not to do this, and the question of whether the company was negligent in this regard should have been submitted to the jury along with the other question of whether it was a “common carrier.”
On account of the error indicated, the judgment is reversed and the case remanded for new trial. | [
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Wood, J.
This is an action by the appellant against the appellee to recover damages for personal injuries. The appellant alleged that the appellee was a corporation, and that he was in its employ, and that while in the discharge of his duty, and free from any carelessness on his part, on the 9th day of August, 1921, through the negligence of the appellee, a large belt in the appellee’s plant broke, one end of which struck the appellant about the head and left eye, which rendered him blind in that eye; that the appellee was negligent in failing to furnish the appellant a safe place to work and in failing to properly inspect the belt in use, and in’ removing the hood which was placed over the belt. He prayed judgment for damages in the sum of $10,000.
Appellee, in its answer, denied all the material allegations of the complaint, and set up the affirmative defenses of contributory negligence and assumed risk.
The testimony of the appellant tended to prove that he was employed at the sawmill plant of the appellee as a common laborer. On the day he was injured he was putting boards on the table for the rip-sawyer. He was fourteen or fifteen feet away from the belt that broke. When the belt broke, the belt, or piece of it, hit the appellant in the eye, which put it out. One witness testified that on the day before the accident he had worked on the belt that broke and injured the appellant.; that he had fixed it with glue. The belt came apart where it was glued ’ and several pieces whipped off and flew in different directions. Some were as large as your hand and some were not larger than your thumb. The belt was running very fast. There was no top o,n the box the day appellant was injured. The top was there for the protection of the employees. If the top had been on, the belt was not liable to fly out, but would have gone underneath. The hood should have been there, but was off to oil the bearings and had not been put back. If it had been on the appellant would not have been hurt. The belt was old. It had been used and spliced. It should be looked after every day. If it had been looked at that afternoon, it could have been discovered that-it was coming loose.
Photographs of the rip-saw and premises showing where the appellant was situated on the day'of his injury were identified by the photographer who took these pictures, and also by one of the owners of the plant, as being correct representations of the premises.
There was testimony on behalf of the appellee tending to prove that the place where the appellant was standing at the time of his injury was 23 feet from the belt; that it was not possible for the belt to reach over and strike the appellant. There was testimony tending to prove that the fender box housing the belt was properly constructed; that a top was not necessary on a machine of that make; that in mills constructed as this one was it was not customary to have housing or a top over the driving pulley. There was further testimony tending to show that the belt was of a reliable quality and properly constructed; that immediately after the appellant was injured the place where he was standing was examined and no piece of the belt was found that could have struck him. A piece of belt was found about a foot from where it came off the pulley. The belt itself was examined, and the whole belt was intact except a small piece about six inches wide.
Witnesses who were familiar with the premises and the construction of the belt and pulley, after testifying concerning these, stated that in their opinion it was not possible for the belt to come out of its housing and hit a man where .the appellant was standing, and that it would have been more dangerous for the belt to have had a housing or covering over it than without. There was testimony tending to prove that the belt had been inspected the day of the accident, and before the injury occurred.
The issues of negligence and assumption of risk were sent to the jury under instructions which will be referred to later. The jury returned a verdict in favor of the appellee. The motion for new trial, assigning the various errors upon which the appellant relies, was overruled. We will refer later to such of these assignments of error as we deem necessary. From a judgment in favor of the appellee is this appeal.
1. After the appellant had exercised his challenges to the list furnished him from which to make up the jury, he asked the court to permit'him to challenge juror High-tower and to accept in lieu of him juror 0 ’Connell. Appellant stated to the court that his attention had just been called to the fact that one E. A. Howell was vice-president and a director of a certain trust company and also vice-president and a director of the appellee; that juror Hightower was also an officer of the same trust company, and that for the reasons stated appellant wished the privilege of then challenging Hightower and accepting 0 ’Connell, who at that time had left the room. The court refused the request, to which ruling appellant duly excepted.
It is not contended that Hightower had any interest, direct or remote, in the appellee. He was a qualified juror, and it was within the.discretion of the court at that juncture to refuse the above request of the appellant to substitute another juror for him. There was no abuse of this discretion. Rumping v. National Bank of Hot Springs, 121 Ark. 203; Funkhouser v. Pugue, 13 Ark. 295; Decker v. Laws, 74 Ark. 286; Lavender v. Hudgins, 32 Ark. 763.
2. The photographs were duly authenticated. They were shown to he correct representations of the locus in quo at the time the appellant was injured. They were therefore “admissible as evidence to aid the court or jury to understand the evidence, and witnesses to explain their testimony.” K. C. S. R. Co. v. Morris, 80 Ark. 528-534; Young v. State, 144 Ark. 71; see also Zinn and Chaney v. State, 135 Ark. 342.
3. Dr. Breathwit, who qualified as an expert in the treatment of the eye, after describing the nature of the wound to the appellant’s eye, was asked this question: “Was the wound which you found upon your examination made at the time such as could have been made by appellant himself in stooping down and striking his eye against some object?” The witness, over the objection of appellant, was permitted to answer the question, and answered in the affirmative.
Conceding, without deciding, that the question was an improper one, the appellant is not in an attitude to complain of the ruling of the court. For the error, if it be an error, was waived by the appellant by not objecting to a precisely similar question propounded by appellee’s counsel on cross-examination to an expert witness which appellant had introduced to prove the nature of the injury to appellant’s eye. Moreover, the error, if it be an error, was invited by the appellant, and he is in no attitude to complain, because in the cross-examination of appellee’s superintendent, who was on the ground and had his attention drawn to the injury a few minutes after it occurred, and who was investigating to ascertain the cause, he was asked by the appellant’s counsel what he thought was the cause of the injury, and he explained that in his opinion “when the belt broke the appellant just ducked down and struck his eye on the sharp corner of the board.” This testimony having been elicited by the appellant himself, he cannot complain because the appellee thereafter brought forward evidence, which was merely opinion evidence, to the effect that the appellant’s injury could have been caused by tbe appellant striking his eye against some object. The testimony thus adduced by the appellee was in its nature merely cumulative of that which had already been brought into the case by the appellant himself. See Greer v. Laws, 56 Ark. 37. While the appellant objected to the testimony of Dr. Breathwit, he did not ask the court to exclude testimony of the same nature which had already been brought into the case without his objection and the other testimony which had been elicited by the appellant himself.
4. The appellant complains of the ruling of the court in giving its instructions to the jury and in refusing certain prayers of appellant for instructions. It is unnecessary to set out and discuss in detail the several instructions given and the prayers for instructions refused. The issues of negligence and assumed risk were submitted to the jury in instructions which correctly declared the law applicable to the facts and in conformity with many decisions of this court. No useful purpose could be subserved by reiterating those familiar doctrines. The court submitted the appellant’s theory of the case on the facts in several prayers for instructions. Such of appellant’s correct prayers as were refused were covered by those granted. The court did not err in refusing the several prayers of the appellant for instructions on the issue of contributory negligence. There was really no testimony in the record tending to show that there was any contributory negligence on the part of the appellant, and the court would have been fully justified in refusing to submit that issue to the jury. The court, however, gave appellant’s prayer No. 1, which embraced the issue of contributory negligence and fully covered other prayers of the appellant on that subject, which were refused. It was not error to refuse any prayer offered on the issue of contributory negligence, because that issue was entirely eliminated by the undisputed evidence in the case.
For the same reason the court did not err in refusing to give appellant’s prayer for instruction No. 18 on the subject of comparative negligence.
Appellee’s prayer for instruction No. 7 in substance told the jury that the appellee would not be liable in damages for an injury that was not the direct result of the negligence of the appellee. The instruction was correct. Emerson v. Turner, 95 Ark. 597-604; Pittsburg Reduction Co. v. Horton, 87 Ark. 576-581.
In appellee’s instruction No. 8 the court told the jury, in effect, that the negligence of the appellee could not be presumed from the fact alone that the belt parted and that the appellant was injured thereby. The instruction was correct. St. L. S. F. R. Co. v. Hill, 79 Ark. 76-81, and cases there cited.
In instruction No. 9 the court, in effect, told the jury that, even if the appellant’s injury resulted from the breaking of the belt caused by the appellee’s failure to inspect the same, or its failure to have a hood over the belt, still the appellee would not be liable unless, in the exercise of ordinary care under the circumstances, it could have anticipated or foreseen that the injury might have occurred to the appellant while working at the place where he received the injury; that the appellee’s duty to exercise reasonable care to furnish the appellant a safe place to work extended only to such parts of the premises as the appellant occupied while in the discharge of his duty. The instruction was. correct. The master is only required to exercise ordinary care to furnish his employee a safe place in which, and safe tools with which, to do his work, and if the master, in the performance of this duty, has taken every precaution that a man of ordinary care and prudence would take under the same circumstances, then he is not guilty of any negligence. If the master, in the exercise of ordinary care to furnish a safe place and tools, could not have reasonably anticipated or foreseen that the injury could occur as it did, then he is not negligent if he fails to provide means to prevent it. Little Rock & Ft. Smith Ry. Co. v. Duffy, 35 Ark. 602-615-616. 3 Labatt’s Master & Servant, sees. 1042-1046, footnotes 2 and 3, and Wood v. Heiges, 83 Md. 257, 34 Atl. 872.
Instruction No. 10, given at the instance of the appellee, was an instruction on assumption of risk, and, taken in connection with appellant’s instruction No. 4 on that subject, correctly declared the law.
Instruction No. 11, given at the request of the appellee, told the jury that if the appellant’s injuries were the result of a pure accident and not the result of the negligence of any one, the appellant could not recover. The instruction was applicable to the facts and was a correct declaration of law.
The issues were correctly submitted to the jury, and there was' testimony to sustain the verdict. The judgment must therefore be affirmed. It is so ordered. | [
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Hart, J.
Tbe indictment in this case charges R. W. Miller, as city collector of the city of North Little Rock, with embezzling the public funds of that city, in violation of the provisions of sec. 2832 of Crawford & Moses ’ Digest.
From a judgment and sentence of conviction pronounced upon a verdict of guilty, the 'defendant lias duly prosecuted an appeal to this court.
It is earnestly insisted by counsel for the defendant that the evidence fails to support the verdict, but in this contention we cannot agree with counsel, for the reasons 'which we shall now state.
During the year 1920, and up until April, 1921, the defendant, R. W. Miller, was city clerk and ex-officio collector of the city of North Little Rock, in Pulaski County, Arkansas. When the defendant turned the office over to his successor, he had on hand city warrants of the face value of $1,834.68, cash in the sum of $1,010.22, and checks which, added to the above, amount to something over $6,000. An audit of his books showed that at the time he resigned his office he should have had on hand city funds to the amount of $5,531.63 and funds belonging to the various city improvement districts in the sum of $7,249.74. Other evidence tended to establish the correctness of the audit.
The defendant was a witness for himself. He could not account for his shortage of funds and did not claim to have on hand any funds except the city warrants, cash and checks above set forth. The defendant stated that he did not know how much of the money he had on (hand belonged to the city, and how much belonged to the different improvement districts. He stated that the way he did was to check up the improvement districts and deposit money for them, and what he had left he considered as belonging to the city
Under this state of the record, counsel for the defendant contends that it was a matter of conjecture merely whether the defendant misappropriated the city ‘funds or the improvement districts ’ funds, and that therefore the evidence is not legally sufficient to support the charge of embezzling the. city funds.
Under the statute it was an offense for the defendant to misappropriate the funds intrusted by law to his care, or to allow them to be misappropriated. In other words, his wilful failure to pay over the public funds to his successor was of itself a wrongful misappropriation of the public funds in his hands. Davis v. State, 80 Ark. 310. The undisputed evidence shows that there was a shortage in his accounts with the city and that this shortage resulted from a misappropriation, either of the city funds, or of the improvement district funds, or both. In the very nature of things the city warrants belonged to the city, but the cash on hand and the checks might have belonged to either the city or to the improvement districts.
The theory of the defendant is that the cash and checks on hand, when added to the face value of the city warrants, amounted to more than the sum he was accused of embezzling from the city, and that, because the record does not show to which fund the cash and checks should be applied, there is a failure of evidence to support a charge of embezzling the city funds.
The fallacy of this argument is that the defendant had the actual custody of both the city funds and the improvement district funds, and it was a violation of law to embezzle the funds of either. The defendant was short in his accounts as the custodian of these funds, and, from the evidence in the record, must have commingled the city funds and the improvement district funds. The defendant wrongfully mingled the funds, and it is not possible from the evidence to trace the city funds or the improvement districts’ funds to any particular part of the cash and checks on hand turned over by the defendant to his successor in office.
Under this state of the record the city and the improvement districts would each be entitled to a pro rata part of the funds on hand. It results that the evidence is sufficient to convict the defendant of embezzling the city funds. The defendant mixed the city funds and the improvement district funds so that it could not 'be ascertained Whether the funds on hand belonged to the one or the other. Under the circumstances, the jury might have inferred that the funds were so mixed with the intent to deprive the owner thereof. Otherwise a public officer would, be able to escape the penalties of the statute by wrongfully commingling the various funds intrusted to his custody. Such is not the law, and it follows that the evidence is legally sufficient to support the verdict.
It is also contended by counsel that the court erred in failing to.instruct the jury that, if they were unable to determine whether the funds on hand were the city’s funds or the funds of the various improvement districts, they should acquit the defendant.
This phase of the case was covered by the instructions given by the court. The jury was specifically told that the funds of the improvement districts were not the funds of the city, and in another instruction the jury was told that the ownership of the property taken was material, and that it must find beyond a reasonable doubt that the defendant was guilty of taking the property of the city of North Little Bock before it could convict him.
•We find no reversible error in the record, and the judgment must be affirmed. | [
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Smith, J.
Appellant, who was the plaintiff below, sued to recover balance of salary alleged to be due him upon a breach of his contract of employment.
After the selection of the jury the court made the following statement: “Gentlemen of the jury, this is an action for damages on an allegation of breach of contract for labor. The plaintiff alleges that the defendant employed him to operate a ferry, and contracted and agreed to pay him seventy dollars a'month from the first of August to the end of the year, and that on the 13th day of September, 1920, the defendant discharged him. These allegations the defendants admit. ' Defendants admit that they employed him to operate the ferry and that they agreed to pay him seventy dollars a month from the first of August until the expiration of the year, and admit that they discharged him on the 13th day of September, but they deny that the discharge was wrongful. Now, the only question to be determined by you is whether or not the discharge was wrongful.”
After this statement was made, the plaintiff offered testimony to the effect that he had been discharged without legal cause. After offering this testimony, plaintiff rested; whereupon counsel for the defendant moved the court to direct a verdict for defendant upon the ground that plaintiff had not proved his allegation of damages. Counsel for plaintiff then asked, permission to recall the plaintiff to prove this damage. Defendant’s counsel objected to this being done, and, without sustaining the motion, the court permitted the defendant to offer its testimony, at the conclusion of which counsel for plaintiff again asked permission to recall the plaintiff to prove by him that, after his discharge, and from the time of his discharge, he sought to obtain other employment and failed to do so up to December 1, 1920.
This motion was overruled; and this appeal is from the judgment pronounced upon a verdict for defendant returned under the direction of the court.
The judgment must be reversed for two reasons. First, it was an abuse of discretion for the court to refuse to permit plaintiff to prove his inability to secure employment after the breach of the contract; and this is especially true, inasmuch as the court had stated to the jury, without objection from either party, that the only question to be determined was whether the discharge was wrongful.
A second reason for the reversal of the judgment is that plaintiff had made a prima facie case when he proved that his discharge was wrongful. In the case of Van Winkle v. Satterfield, 58 Ark. 617, it was said: “The burden of proof is on the employer to show that the servant might have obtained similar employment; for the failure of the servant to obtain other employment does not affect the right of action, but only goes in reduction of damages, and, if nothing else is shown, ‘the servant is entitled to recover the contract price upon proving the employer’s violation of the contract, a.nd his own willingness to perform.’ The fact that the servant might have obtained new employment does not constitute a defense. It is one of the facts to be considered in estimating the servant’s loss. Howard v. Daly, 61 N. Y. 362; Gillis v. Space, 63 Barb. 177; Costigan v. Railroad Co., 2 Denio 659; Sutherland v. Wyer, 67 Me. 64; 2 Sutherland on Damages, sec. 693; Wood on Master and Servant, p. 245.” See, also, Sweet v. McEwen, 140 Ark. 162.
Appellee questions the sufficiency of the return of the sheriff upon the summons which issued out of this court. But there has been an alias summons and a correct and sufficient return thereon.
• Appellee also contends that the bill of exceptions was not filed within the time limited by the trial court, and insists therefore that the judgment should be affirmed, as no error appears on the face of the record. But the return of the clerk of the court below in response to the writ of certiorari shows that the bill of exceptions was in fact filed within the time limited.
For the errors indicated the judgment is reversed and the cause remanded for a new trial. | [
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Humphreys, J.
This ease was here on appeal un: der the style of Union & Mercantile Trust Co. v. Hudson, to determine whether the bill stated a cause of action. The case is reported in 147 Ark. 7. Reference is made to it for the allegations contained in the bill, instead of setting them out herein. Upon the reversal of the decree dismissing the bill and a remand of the cause, an answer was filed interposing, among other defenses, the defense that, after appellee’s executrix had notified appellants that she was claiming the funds on deposit in the First National Bank as her individual property, she filed a petition in the probate court, where her deceased husband’s estate was being administered, for the dower interest in the particular fund in question, which was allowed and paid to her; that, relying upon her election to take dower, the administrator paid the balance of said fund, on the order of the probate court, on preferred claims proved against the estate of V. Gr. Richardson, deceased.
The cause was submitted to the court upon the pleadings and an agreed statement of facts,'with exhibits attached, which resulted in a decree in favor of appellee for $4,885.28, the balance of the fund, including interest, which was on deposit in said bank when Y. Gr. Richardson died, from which judgment is this appeal. The defense interposed and set out above was incorporated in substance in the agreed statement of facts. The following paragraph appears therein:
“Administration was granted to the defendant on the Y. Gr. Richardson estate on the 28th day of May, 1918, and thereafter the said Willie A. Richardson, widow of V. Gr. Richardson, with full knowledge that said money was on deposit in the First National Bank at Batesville, in the name of Y. Gr. Richardson, filed a petition for dower out of said funds and moneys in the Independence Probate Court, a copy of which petition is hereto attached, marked Exhibit ‘ C’, and made a part of this statement of facts.” Exhibit “C” referred to in said paragraph is as follows:
“Petition for assignment of dowry and personalty. In the matter of the estate of V. G. Richardson, deceased.
“Mrs. Willie Alexander Richardson, who is the widow of Y. G. Richardson, deceased, states at the time of the said Y. G. Richardson’s death, he was solvent and was possessed of personal property in the excess of $300 in value, as shown by appraisement list filed herein.
“Also, tire said Y. G. Richardson, before his death, executed a certain will devising and giving all of his estate to the said petitioner, and same has been filed for probation, but your petitioner elects to take her interest as allowed her by law rather than take under said will.
“The said Y. G. Richardson died seized and possessed of certain personal property, consisting of notes, money in the bank and other personal property of the value of approximately $8,000, which is shown by inventory filed by the administrator herein, with the exception of about $6,000, which is deposited in the First National Bank of Batesville, Ark., to the credit of the estate of the said Y. G. Richardson.
“The petitioner, therefore, prays that Roy Hudson administrator of the estate of the Y. G. Richardson, be directed to set apart and deliver to her such part of said estate as she is allowed under the law governing a widow’s allowance, and for all other proper and equitable relief.
(Signed in person) “Willye A. Richardson,
“Casey & Thompson, Attorneys.”
Appellant’s contention is that, under the agreed statement of facts, appellee’s testatrix was estopped from claiming the fund on deposit as her individual estate, and that the court erred in not dismissing the bill. We think they are correct in this contention. The doctrine of equitable estoppel has been defined by this court as follows: “Estoppel in pais is conduct intended and calculated to induce and in fact inducing another person to alter Ms condition 'so that it would be a fraud on him to allow the person to take an inconsistent atti tu.de to Ms detriment.’’ Thompson v. Wilhite, 131 Ark. 77; Johnson v. Taylor, 140 Ark. 100. After appellee’s testatrix knew that her husband deposited the money in question in his individual name in the bank, which had been derived from a mortgage on lands owned by them in entirety, and after she had notified appellants that she intended to claim the money as her own, she filed a petition in the probate court alleging that her husband died seized and possessed of.it and prayed that she be allowed a widow’s interest therein. The court allowed her one-third of the amount, which was paid to and accepted by her. Thereafter the administrator of her husband’s estate, under the belief that she had abandoned her claim to the entire fund, paid the balance of the fund out, in good faith, bn preferred claims which had been proved against the estate of her husband which had been ordered paid by the court. These facts bring the instant case within the doctrine of equitable estoppel as defined in the cases cited above, and also within the rule announced in the case of Beam v. Copeland, 54 Ark. 70.
For the reasons indicated the decree is reversed, and a decree is entered here dismissing appellee’s bill for the want of equity. | [
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Hart, J.
Gid Shaw prosecuted this appeal to reverse a judgment of conviction against him for the crime of obtaining goods and money under false pretenses.
To sustain the conviction the State relies upon the principles decided in Lawson v. State, 120 Ark. 337. There the defendant was an officer, and not only had the power but it was his duty to arrest the prosecuting witness. The defendant stated to him that he would not arrest him if he would comply with his terms. In other words, there was an implied threat that the defendant, as an officer, would arrest the prosecuting witness if he did not comply with his terms. By this means the defendant obtained from the prosecuting witness the sum of $300.
Here the facts relied upon by the State for a conviction fall short of bringing the case within the rule announced above. It appears from the record that John L. Burke sold a mare to one McKay for $25 and held a note for the purchase price, retaining title in the mare until she was paid for. McKay left the mare with Lewis Elliott, the prosecuting witness. Elliott traded the mare to A. B. Roehte for another one. Some time afterwards the defendant, Shaw, and Roehte went to Elliott and demanded payment bf the note which had been given by McKay for the purchase price of the mare. The defendant, Shaw, told Elliott that he was up against it and had better settle the matter. Shaw did not say that he was an officer, or that Elliott had violated the law. Elliott knew that Shaw sometimes arrested men, and from this, and his acts on the occasion in question thought that Shaw was an officer. Shaw gave Elliott until the next morning to think the matter over. On the next morning Shaw and Roehte went to Elliott’s house, and the latter gave them certain personal property in settlement of the matter. After Elliott had delivered to them the personal property, the defendant wrote a receipt, which was signed by Roehte, and then gave the receipt to Elliott. They told the latter that the receipt was to clear him from making any further payment of the note given for the purchase price of the mare.
On cross-examination, the witness testified that Shaw did not teli him he was an officer, nor did Shaw charge him with violating the law. Shaw only said to Elliott that he was “.into it and had better settle the matter up.”
The defendant himself testified that he was not an officer, and that he only went with Rochte to help collect the note. His testimony was corroborated by that of John L. 'Burke.
The testimony does not show any causal connection between the alleged false pretenses and the loss to the prosecuting witness. Shaw did not represent himself to the prosecuting witness as an officer clothed with the power and duty to arrest him for violating the law. He did not even charge the prosecuting witness with a violation of the law. He only told him that he had better settle the matter up. This referred to the fact that the original owner of the mare had a note for the purchase price, which was unpaid, and in which the title to the mare was retained until the purchase price was paid.
The defendant was not induced to give up his property by any implied threat on the part of the defendant that he had committed a crime and would be prosecuted unless he settled the matter.
The facts proved do not constitute the criminal offense of obtaining goods and money by false pretenses under the statute. Roberts v. State, 85 Ark. 435.
It follows that the evidence fails to support the verdict, and inasmuch as the facts have been fully developed, the judgment will be reversed and -the cause remanded, with directions to dismiss the indictment. | [
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Wood, J.
The appellant appeals from a judgment of conviction under an indictment which charges that he “did unlawfully and feloniously manufacture, and was unlawfully and feloniously interested in the manufacture of alcoholic, vinous, malt, spirituous and fermented liquors and a compound or preparation thereof, commonly called tonics, bitters, or medicated liquors.”
The testimony on behalf of the State was to the effect that appellant rented a potato house from one Mrs. Julia Spain, for the purpose of storing his potatoes therein during the potato storage season for the years 1919 and 1920. The storage season for potatoes is from the time they are harvested in the summer until they are planted the following spring. When Mrs. Spain rented the house to appellant she delivered the key to him. As far as she knew he had complete control of the building until he was arrested on the 4th nf March, 1922, on the charge of manufacturing alcoholic liquors. At the time of his arrest he had potatoes in the house and was in complete control of the building. Appellant was suspected by the officers, and under authority of a search warrant they searched the potato house.
The sheriff of G-reene County secured the search warrant to search the potato house. He found appellant, and requested him to go with him while he searched the house. Appellant ashed the sheriff to wait for him ten or fifteen minutes before making the search. The sheriff denied appellant’s request, and took him to the building immediately. On their way the appellant told the sheriff that he was looking for a United States marshal; that he had found something out there in the potato house and did not know what it was.' The sheriff asked appellant why he had not reported what he had found to him, and appellant replied, “Well, I was looking for the United States marshal.” When the sheriff first met the appellant and informed him that he had a warrant, appellant told the sheriff to go ahead out there without him; that he could jerk the lock and it would come open, but the sheriff took the appellant along, and when they reached the house the appellant jerked the lock and the door did not come open. Whereupon the appellant unlocked the door and they went in and found thirty-five or forty gallons of mash and drippings. The mash consisted of meal, sugar or molasses, with yeast cake in it. There were two barrels in there. One of these barrels contained mash and drippings and the other contained about sixteen -gallons, of strained' drippings, and in a tow sack hanging over inside the barrel was meal and stuff. The mash which had not been strained or dripped was working, bubbling,» and was very sour. The officer found a lard stand which had contained wet meal, some of the meal remaining in the stand. The strained mash or drippings looked like it was ready to be distilled into whiskey. The mash had the odor of whiskey — an alcoholic scent. ■ The barrels- looked like they had been there for some time — some six or eight months. In the potato house there was a little room lined with tow sacks¡ to make it airtight. The officer found a still and a stillworm under a small platform covered'with tow sacks. Nothing could be seen in the house until they had a light. They found in the house a barrel which the appellant said contained vinegar, but which the officers found to be water.
The sheriff described fully the building and its contents and surroundings, and explained how the still and its equipment which he found in the potato house were operated in the process of manufacturing liquor. He testified that the still smelled like it had been used — “it smelled like white mule. ’ ’ It was shown by a registered pharmacist that mash consisted of meal, chops, sugar or molasses, water and yeast cake, and that when same had soured and was bubbling it contained alcohol. He gave it as his opinion that the mash or preparation described by the sheriff would contain alcohol.
The appellant, in his testimony, denied that he had anything to do with the manufacture of liquor. He admitted that he had a key to the potato house, and as far as he knew no one else used the potato house, or had any connection with it except himself. He testified that the barrels containing mash were “old slack barrels” and were in the building when he rented it.
Witnesses were introduced on behalf of the appellant who testified to the effect that the appellant was a hard-working and industrious man, who was constantly employed working for a living.
1. The appellant contends, first, that the testimony was not sufficient to sustain the verdict, and we are convinced from the above testimony that - the issue as to whether or not appellant manufactured alcoholic liquors as charged in the indictment was one for the jury.
2. Appellant also contends that the court erred in overruling his demurrer to the indictment; one of the objections he urged to the indictment was that the caption . of the indictment showed that the indictment was found in the “circuit court of Greene County, criminal division.” Section 2 of act No. 138 of the Acts of 1911 divides the circuit courts of the second judicial circuit into two divisions, to be known as the First and Second Divisions. The 4th section of the act, among other things, provides: “The clerk of each of said courts shall assign all civil cases to the First Division and all criminal cases to the Second Division as soon as docketed, by writing opposite the title of each the words, ‘First Division’ or ‘ Second Division’.” The act further provides for an additional judge of the circuit, and that if the judges deem it expedient they may divide the business into other than civil and criminal divisions and in any manner they deem proper, and on their written order the clerks of the several courts shall assign cases therein filed to the particular division, as may be provided in said order.
The indorsement on the indictment was doubtless meant for the purpose of properly designating the division of the court in which the indictment had been returned under the provisions of the statute. The indictment, upon its face, showed that it was returned by the grand jury of Greene County sitting in the Second Division of the circuit court of that county. That was sufficient to give the circuit court of the Second Division of Greene County jurisdiction of the case.
Appellant further contends that the indictment was defective because the disjunctive “or” is used between the words “compound” and “preparation” and also between the words “bitters” and “medicated liquors.” It is obvious that the disjunctive “or” between the words “compound” and preparation,” and between the words “bitters” and “medicated liquors” as used in the statute (sec. 6160, C. & M.) and in the indictment, which follows the language of the statute, were not intended by the lawmakers nor by the pleader to designate separate and distinct offenses; but the word “or” was used to connect different words meaning the same thing. The words “compound” and “preparation” in the statute are used synonymously, and likewise the words “tonics” and “medicated liquors” are synonymous. One of the most common uses of the conjunctive “or” is to connect different terms expressing the same thing or idea. See Standard Ency. of Procedure, vol. 12, 455, 456.
3. "While the jury was deliberating on its verdict, W. R. Gamer, one of the jurors trying said cause, came from the jury room into the courtroom and handed the court a slip of paper on which was written the following question: “Does the making of sour mash constitute making liquor?” The court wrote upon the slip in answer to the question, the following: “If sour mash is found by the jury from the evidence beyond a reasonable doubt to be alcoholic, yes.’’’ The appellant and his attorney were present wlaen the interrogatory and answer thereto were read, and no exceptions at the time were saved to this procedure. After the verdict of the jury came in, counsel for appellant requested the court to allow him to except, which request the court refused for the reason that counsel for appellant made no exception at the time the procedure occurred and did not attempt to do so. The objection to the question and answer, coming as it did after the verdict, was too late. In order for the objection of appellant to avail, he or his counsel should have interposed same when the question and answer were read in their presence and hearing. Conceding that these proceedings were irregular and erroneous, the appellant must be held to have waived the error by failing to except to the ruling of the court at the time such ruling was made and by waiting until after the return of the verdict to interpose his objection. See Holmes v. State, 153 Ark. 339.
The testimony of jurors taken to establish the ground of the motion for new trial,, on account of the above procedure, and to show its effect'upon their verdict, and that the verdict was reached only upon condition that the court should be asl?ed to suspend the judgment, was incompetent. Lamb v. State, 135 Ark. 275; Arnold v. State, 350 Ark. 27.
There is no error. The judgment is therefore affirmed. | [
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Wood, J.
The appellant was convicted of the crime of keeping a gambling-house under section 2632, Crawford & Moses’ Digest. A judgment was entered sentencing bim to two years’ imprisonment in the State Penitentiary, from which he appeals.
Jeff Jones, a witness on behalf of the State, testified to facts which fully justified the jury in returning a verdict of guilty. The appellant does not contend that the evidence is not sufficient to sustain the verdict, but complains because the witness, Jones, was permitted, over the objection of appellant, to testify that one time the appellant cursed him and threatened his life because he (Jones) requested that the appellant return a dollar to him which Jones claimed he had given to 'appellant for the purpose of inducing the appellant to sign an appearance bond for Jones. The specific testimony of Jones to which the appellant objected was as-follows: “I went to Dave and I asked Dave to give me my dollar and Dave said, ‘I ain’t going to’give you a damn thing— I will blow your G — • damn brains out if you don’t get out of here.’ I said, ‘Well, that is all you can do is to blow my brains out.’ He said, ‘G— damn you, if I thought you had a pocket-knife I would blow you down right here,’ and my wife and another girl was together with me.”
The court permitted this evidence on the ground that it tended to show the interest and feeling of the witness and might be considered by the jury in weighing the witness ’ testimony. It was certainly not prejudicial to appellant to permit testimony tending to prove that the witness, upon whose testimony the State relied for conviction, was strongly prejudiced against the appellant. Such, testimony was favorable to the appellant, and be is in no attitude to complain of the ruling of the court. Fort v. State, 52 Ark. 180; National Produce Co. v. Garrett, 121 Ark. 570.
Since the ruling of the court was not prejudicial to appellant, the judgment is correct and it is affirmed. | [
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Hart, J.,
(after stating the facts). It is earnestly insisted by counsel for the defendant that the court should have directed a verdict in his favor. They point out that Dumm only had authority to enter into written contracts for the purchase of timber for the defendant, and that no contract in writing was ever made by him with Yochum. They insist that the only contract made with Yochum for getting out logs was the answer of Bartlett to the letter written by Landrum for Yochum of the date of August 31, 1920.
It is true that the letter only refers to the shortage on Moore’s barge and asked permission to supply enough logs to fill out that barge; but this letter and the answer accepting does not restrict the plaintiff’s right of recovery to that barge. "While Dumm had authority from Bartlett only to make written contracts for the purchase of timber, yet his apparent authority in the matter covered a much wider field. Dumm had been the general purchasing agent for Bartlett for a number of years, and had purchased all of his timber in that part of the country. Bartlett himself wrote to Yochum that Dumm would be down in his vicinity soon, and that he trusted that he could make satisfactory arrangements with Moore and Yochum about their timber. He knew that Yochum was getting out logs for him under the contract which Dumm had made with Moore for him. It was inferable, from these facts and circumstances, that Dumm had at least apparent authority to make an oral contract with Yochum for the purchase of the logs got out by him. A person is bound, not only by all acts of his agent within the scope of actual authority, but also by those within the apparent scope of his authority, though beyond his actual authority. Crossett Lumber Co. v. Fowler, 137 Ark. 418, and Arkadelphia Milling Co. v. Green, 142 Ark. 565.
It will be seen that Bartlett knew that Yochum was getting out timber under Moore’s contract, and Bartlett also gave Dumm express directions to adjust any differences with regard to the matter.
According to the testimony of Yochum, he got out 59.000 feet of timber by the first of October, 1920. It will be noted that this was done before Bartlett wrote his letter of October 2, 1920, to Moore, restricting his right to getting ont but one barge of logs.
It also appears from the testimony of Yochum and Moore that Dumm came down about the middle of October, 1920, and scaled and accepted a barge of logs from Moore. At that time he also inspected, scaled, and accepted 59,000 feet of logs got out by Yochum. He told Moore and Yochum that he would first take Moore’s barge of logs up the river and then come back and get another barge of logs, including those got out by Yochum. According to the testimony of Yochum, Dumm was told about the letter that Bartlett had written to Moore on October 2, 1920, telling, him that he would not accept but one barge of logs. Dumm. said that this did not make any difference, that he would take two barges of logs, and this included the 59,000 feet of logs got out by Yochum.
These facts warranted the jury in returning a verdict for Yochum after Bartlett refused to accept the 59.000 feet of logs got out by Yochum. The respective theories of the parties to this lawsuit were submitted to the jury under proper instructions. The jury returned a verdict for Yochum in the sum of $1,665. The undisputed evidence shows that Yochum got out 59,000 feet of timber and placed it on the river bank for Bartlett. Yochum testified in positive terms that he got out this amount by the first of October, 1920. His testimony is corroborated by other facts and circumstances. He was to receive $35 per 1,000 feet for all logs gotten out by him. This would amount to $2,065. 'Bartlett had already made an advancement of $400. This would leave a balance of $1,665, which was the amount of the verdict. This shows that the jury only allowed Yochum for the timber ydiich was scaled and accepted by Dumm on the riyer bank.
The verdict therefore eliminated an error which the court made in submitting the question of damages suffered by Yochum for a breach of contract in respect to logs which had not been scaled and accepted by Dumm. The reason is that, if the jury only allowed Yochum damages for the logs which were actually scaled and accepted by Dumm, no prejudice could have resulted to the defendant from submitting the question of damages, as to logs not delivered and accepted by Dumm, to the jury. St. L. S. W. Ry. Co. v. Grayson, 89 Ark. 154, and Hill v. Gibson, 107 Ark. 130.
It follows’ that the judgment will be affirmed. | [
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Humphreys, J.
Appellant instituted suit in ejectment again'st appellee in the circuit court of Prairie County, Northern District, to recover possession of the following described lands in said county, to-wit: Lot 6 of N. W. quarter section 3; lots 5 and 6 of N. E. quarter and lot 5 of N. W. quarter section 4, all in township 4 north, range 4 west, containing 160 acres, more or less. Appellant deraigned his title from the State, setting up a swamp land deed or patent from 'the Commissioner of State Lands, dated February 24, 1919.
Appellee filed an .answer interposing an equitable defense. Tbe answer alleged, in substance,; that the State acquired the lands from the United States under swamp land -act on September 28, 1850, and prior to 1868 certified them out for taxation; that said lands were forfeited to the State for the nonpayment of the taxes for 1868; that subsequently they were certified out under the act of March 12, 1881, and embraced in the “overdue tax suit” in Prairie County, and under the decree in the suit were sold back to the State of Arkansas; that in the years 1895 and 1899 donation deeds were issued for State lands by the State, and that appellee acquired title through mesne conveyances from the donees; that the appellee, and those through whom he claims title, had been in the continuous possession of said lands, made valuable improvements thereon, and paid the taxes since the date of the donation • deeds.
The cause was sent to the jury upon the pleadings, evidence, and instructions of the court, which resulted in a verdict and judgment for appellee, from which is this appeal. The facts reflected by the record are in substance as follows: 'State acquired title to the lands in litigation by virtue of the swamp land act of September 28, 1850. A patent for them was issued by the State to appellant on the 24th d'ay of September, 1919. A tract book, which was an exact copy of the official survey of sections 3 and 4, embracing the lands in question, is kept in the State land office, and was introduced in evidence. Each of the tracts in question, as shown by the tract book, was marked with the letters “S. C.” These letters indicated that said lands had been sold by the Swamp Land Commissioner. The official survey of sections 3 and 4 was also introduced, showing that the north half of the sections are fractional and contain 1,313.90 acres.' Over 'the objection and exception of appellant a certified copy of page 215 of the book of “swamp land entries,” kept in the land office, was introduced in evidence. This book is supposed to show the disposition made of swamp lands belonging to tbe State, and bears date August 2, 1852. The name of Ferguson and Neill, to whom appellee claimed these lands were sold, appeared on this page as the purchasers of lands set opposite their names. “It appears therefrom that on August' 2, 1852, Joseph R. Ferguson and James Q. Neill purchased certain lands in township four north, range four west, as follows:
W. half of N. W. quarter of sec. 2.................................... 80 acres
N. half of see. 3...............................................!...................................320 acres
N. E. quarter of sec. 4.................-..............................................160 acres
E. half of N. W. quarter of sec. -4.................................. 80 acres
Making a total of................................:.......'......................................640 acres
In the column headed “Remarks”, immediately opposite the four entries last mentioned above, the following notation of acreage appears:
“160.97
656.49
333.52
162.92
“Total ......................................................................................1,313.90”.
The other entries on the page prove nothing concerning the lands in dispute, so it is needless to set out all the entries on the page. The lands were forfeited to the State for the taxes of 1868, and they were again sold to the State under the decree in the “overdue tax suit” in Prairie County. A donation deed for a part of the lands was issued in 1895 by the State to Jesse Warren, and appellee acquired his title through mesne conveyances. A donation deed for the other part of them was issued in 1899 to Guy W. Knauff, from, whom appellee acquired them directly. Sixty acres of land purchased by Knauff was cleared, fenced, and two houses built during the occupancy of the donee and his' grantee. The lands purchased by Jesse Warren had also been improved by those in the chain of his title. Forty acres had been put in cultivation, and houses, stables, etc., built upon it.
At the conclusion of the evidence appellant requested the court to direct the jury to return a verdict in his favor, which was refused, over his objection and exception.
Appellant’s first insistence for reversal is that the certificate of purchase, issued to Ferguson and Neill for swamp lands, was the original and best evidence of the lands sold to them, and that the court erred in admitting the records of the land office without first showing the loss of the certificate. We think the record was admissible under the rule announced in Taylor v. Trulock, 26 Ark. 54, and certainly was admissible under the rule prescribed by act 238 of the Acts of the General Assembly of 1921. It was therefore unnecessary to prove the loss of the certificate before introducing page 215 of the records in the land office.
Appellant’s next insistence for reversal is that the court erred in admitting page 215 of the record, because it did not describe the lands in controversy, and for that reason was irrelevant and immaterial. We think the notation of acreage in the column headed “Remarks” opposite the four entries, showing that Ferguson and Neill purchased certain swamp lands, is a circumstance from which it might be inferred that the lands in dispute were embraced within their original purchase. The acreage noted under that heading amounts to 1,313.90 acres, and was the amount in the north fractional half of the two sections in which the lands in dispute are situated. We think it admissible on the further ground that appellee was entitled to produce the whole record, as well as the tract or index book, relating to the disposition of the swamp lands in the sections embracing the lands in controversy.
Appellant’s next insistence for reversal is that, even if the State had parted with the title to the lands before the execution of the patent to appellant, this equitable defense could not be heard in a court of law. Under § 1194 of Crawford & Moses’ Digest equitable defenses may be interposed and tried in actions at law, if no motion is made to transfer the canse to the chancery court. Taylor v. Trulock, 26 Ark. 54; Nichols v. Shearon, 49 Ark. 75; Gates v. Gray, 85 Ark. 25.
Appellant’s next insistence for reversal is that there is no testimony .from which a reasonable inference might be drawn that the State had parted with its original title prior to the date of the patent to appellant. The letters “S. C.” appear upon the lands in controversy in the tract or index book, which letters, according to the testimony, indicate that the Swamp Land Commissioners disposed of the lands thus marked. It also appears that these lands were forfeited to the State for the taxes of 1868. This is a circumstance tending to show that at some time prior thereto the lands had been sold and certified out for taxation. Again,' the testimony shows that the lands were included in an “overdue tax suit,” filed in Prairie County, and that under the decree for unpaid taxes the State again. purchased them. This testimony also tends to show that at some time prior to the date of appellant’s patent the lands had been sold and certified out by the State for taxation. Even though the long occupancy and valuable improvements, made by appellee and the grantor and grantees in the chain of his title, may be attributed to the donation deeds, the facts and circumstances above detailed cannot. They can only be attributed to an ancient grant of the State’s original title and, we think, are sufficient to base a reasonable inference that there was a sale of said lands by the State to some cne antedating appellant’s patent. The jury indulged the presumption of a prior grant, and there was sufficient evidence to warrant it.
Appellant’s next and last contention for reversal is that lands sold under the “overdue tax suit” are not subject to donation as forfeited lands. We think lands acquired by the State in overdue tax proceedings are subject to donation. But, aside from this view, in tbe instant case the lands in controversy were clearly subject to donation under the forfeiture to the State for the taxes of 1868.
No error appearing, the judgment is affirmed. | [
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McCulloch, C. J.
Appellant was convicted in the Johnson 'Circuit Court under an indictment charging him with selling alcoholic liquors, and proof adduced by the State tended to establish the fact that appellant sold a quart of whiskey to one Bailey.
Appellant has not filed a brief in the case, and we can only search the motion for a new trial to ascertain what grounds are relied on for a reversal of the judgment.
The motion for a new trial contains no assignments of error with reference to the rulings of the court in giving or refusing to give instructions. The evidence is sufficient to sustain the verdict of conviction.
The only remaining assignments to consider relate to rulings of the court in admitting testimony.
Appellant, with his two brothers, lived with their father, and the sale of liquor in question to Bailey was, according to the testimony, made at the home place. Bailey went to appellant’s place of residence in company with Bartlett, the sheriff of the county, and a man named Wise, and the two latter secreted themselves near the premises. Bailey went up to the house, at the request of the sheriff, and purchased whiskey. Appellant was not there at the time, and Bailey purchased a quart of whiskey from appellant’s brother, and, as he left the place, he met appellant returning home. At the request of the sheriff he again went to the house, and there purchased another quart of whiskey from appellant, and made arrangements with appellant to deliver several gallons of whiskey to witness at a dance to be held that night in the neighborhood.
According to the testimony of Bailey, he went to the dance that night, and appellant reported to him that he had the, whiskey for delivery in a fence corner near the place where they were having the dance, but that when appellant and the witness started to get the whiskey the sheriff attempted to arrest appellant, who ran away and made his escape.
The sheriff testified that he went back to the home of appellant, or rather to the home of the latter’s father, and searched the premises, and found whiskey secreted there.
Error of the court is assigned in permitting the sheriff to testify, over appellant’s objection, about finding the whiskey at the home of appellant’s father. This assignment, however, overlooks the important fact that this was also the home of appellant, and the State was entitled to prove, as a circumstance in the case, the fact that whiskey was kept there on the premises. The whiskey was found in the smokehouse at the home of appellant’s father, and the proof shows that appellant lived there and was making a crop with his father at the time this occurred.
Next there is an assignment in the motion for a new trial that the court erred in permitting Sheriff Bartlett to testify that he had been informed that appellant and his people were selling whiskey. The assignment is broader than the record justifies, for the court did not permit the sheriff to testify to that effect, but merely allowed him to state, as a reason why he went out to appellant’s home, that he had received information that whiskey was being sold there. This was competent in explanation of the reason for the presence of the sheriff at that place.
There are other objections to the admission of testimony, but the rulings of the court were so clearly correct that they do not call for a discussion in this opinion. Suffice it to say that there was evidence to sustain the verdict, and there is no error found in the proceedings, so the judgment must be affirmed, and it is so ordered. | [
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Hart, J.,
(after stating the facts). The chancellor found a resulting trust in favor of the plaintiffs in the town property in the same proportion as their interest was in the rural homestead. This was on the theory that it was the intention of the parties at the time the exchange of the real property was made that they all should have the same interest in the town property as they had formerly had in the rural homestead. In this connection it may be said that a resulting trust in land may be established by parol evidence, but the evidence must be clear, positive and satisfactory. Spradling v. Spradling, 101 Ark, 451, and Harbour v. Harbour, 103 Ark. 273.
Tested by this rule, we do not think that the finding on this point in favor of the plaintiffs is against the clear preponderance of the evidence.
Eard Gree^ and Beulah Huett are the principal witnesses for the plaintiffs, and Nina Lee Greer and Jewel Rainbolt are the principal witnesses for the defendants. The principal witnesses are all parties to the suit, and as such are vitally interested in the result.
The plaintiffs testify in clear and positive terms that they éxecutéd the deed conveying the rural homestead to Nichols because their mother wished to exchange it -for the house and lot in Morrilton in order that she might move to town with her minor children. They further stated they did not intend to relinquish their re? mainder interest in the property; that they intended to have the same interest in the town property as they had held in the homestead in the country, and did not know to the contrary until sometime after their mother’s death.
On the other hand, the two defendants last mentioned are equally positive that it was the intention of the parties that the plaintiffs should have no interest whatever in the town property. The defendants gave as a reason for this that their father had made certain advancements to the plaintiffs in his lifetime and that this was done for the purpose of equalizing their respective interests in their father’s estate.
They also testified that the plaintiffs were present when their disabilities were removed, and understood that the chancery court in that proceeding decreed their mother an estate for life in the town property with the remainder over to the minors. Ed Rainbolt attempts to corroborate their testimony in this respect.
We think that the testimony of the defendants is whollyinconsistent with the other facts and circumstances in the case. The chancery decree removing the disability of the minors and establishing- their interest in the town property was not rendered until about two years after their mother and the plaintiffs had executed their deed to Nichols, to the rural homestead.
The chancery decree recites that the mother was present and agreed that the town property should 'be decreed to her for her natural life, with the remainder to her minor children. If the plaintiffs had been present and had agreed to this proceeding, it is likely that their consent also would have been recited in the decree and their appearance entered to the proceeding just as in the case of their mother. The fact that this was not done, and that the chancery decree was made two years after the plaintiffs had executed their deed in the exchange of the lands, are strong circumstances tending to show that the plaintiffs were not present when the chancery proceedings were had, and did not agree that their interests in the town property should be divested out of them. Thd plaintiffs could not be bound by the chancery decree unless they were present and knew of its rendition*
Again, it is contended by the defendants that the deed was made for the purpose of equalizing the respective shares of the children in their father’s estate. They claimed that their father had made certain advancements to the plaintiffs in his lifetime and that the plaintiffs had relinquished their claim in the homestead in order to compensate the defendants for the advancements that they had already received at the hands of their father. Their father’s will, however, contradicts their testimony in this respect. He had other lands which he directed in his will to be sold and the proceeds to be divided among his children, taking, into consideration the fact that he had already made a net advancement to Eard Greer, one of the plaintiffs. This showed that it was not necessary for the plaintiffs to relinquish their interest in the homestead in order to equalize the respective shares of the children in their father’s estate.
Therefore, we think that the attending circumstances strongly corroborate the testimony of the plaintiffs, and that the evidence establishing a resulting trust in their favor is clear and satisfactory.
It follows that the decree must be affirmed'. | [
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Hart, J.
(after stating the facts). The principles upon which such a sale should be set aside are clearly established by numerous decisions of this court. It is the settled rule of this court that mere inadequacy of price will not justify a court in refusing to approve a sale and in depriving the purchaser of the benefit of his. purchase, unless the inadequacy is so great as to shock the conscience of the court or to amount to evidence of fraud. Stevenson v. Gault, 131 Ark. 397, and Moore v. McJudkins, 136 Ark. 292.
This court has uniformly recognized that it is essential to the interest of those whose property is sold at a judicial sale that prospective purchasers should have full confidence in the safety of the purchase, and that they will not be disturbed for mere inadequacy of price. Inadequacy of price, coupled with other facts showing mistake or unfairness in the sale, have been recognized as grounds for setting aside the sale and ordering a resale.
In the present case inadequacy of price alone was relied upon to set aside the sale. The land was sold for $150, and it was shown by one witness that he would have given $300 for it. This did not amount to such gross inadequacy of price as to indicate fraud or to shock the conscience of the court, and the court erred in setting aside the sale.
It follows that the decree will be reversed and the cause remanded, with directions to the chancellor to confirm the same, and for further proceedings in accordance with the principles of equity. | [
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Hart, J.
(after stating the facts). Counsel for defendant assign as error the refusal of the court to in struct the jury that, if Luke Jefferson was over sixty years of age at the time he was initiated in the local lodge of the defendant, the plaintiff was not entitled to recover.
We think the court erred in refusing to give the instruction. The rules of the order provide that no person shall be received as a member of the order above the age of sixty years, and that failure to comply with this rule renders the contract null and void.
Our statute prescribing the qualifications for membership in fraternal benefit societies provides that any such society may admit to membership any person not less than sixteen and not more than sixty years of age. Crawford & Moses’ Digest, § 6075. It will be observed that the by-laws follow the statute in fixing the age limit for membership in the order.
It is the contention of the plaintiff that the receipt and retention by the defendant of the dues of the deceased with knowledge that he was ©ver sixty years of age at the time he was initiated in the lodge at Arkadelphia, operates as a waiver of the right to forfeit the benefit certificate. Counsel contend that a corporation cannot avail itself of the defense of ultra vires when the contract has been performed in good faith by the other party and the corporation has had the full benefit of such performance. In support of this claim various decisions heretofore rendered by this court are referred to and relied upon. We need not review these decisions; for they are not applicable in cases where contracts are prohibited by statute. If the prohibition contained in the rules of the order was all that was in the case, the principles might be availing to the plaintiff. The statute, however, restricts the age limit of members to those not over sixty years of age. It provides that only persons not less than sixteen and not more than sixty years of age may be admitted to membership in fraternal benefit societies. This amounts to a prohibition against admitting members over sixty years of age.
The general rule is that if a statute prohibits a corporation from making a contract of a certain kind, the contract is void, even though not expressly declared to be so in the statute, and it is incapable of ratification. The doctrine of ultra vires has no application in the case of contracts by a private corporation, the making of which is prohibited by statute, or where their enforcement would be against public policy on account of being immoral. The reason given is that the powers delegated by the State to corporations are matters of public law of which no one can plead ignorance. Steele v. Fraternal Tribunes, 215 Ill. 190, 106 Am. St. Rep. 160.
In Haner v. Grand Lodge A. O. U. W. of Nebraska, 168 N. W. 189, the Supreme Court of Nebraska said that the general rule seems to be that a fraternal society may waive its own rules and by-laws, but it cannot waive the provisions of a statute made for its government. See, also, Tuite v. Supreme Forest Woodmen Circle, 130 Mo. App. 619, 187 S. W. 137.
The principle is also recognized in White v. Commercial & Farmers’ Bank, 66 S. C. 491, 97 Am. St. Rep. 803, where it was held that contracts ultra vires cannot be made the foundation for the liability of a corporation, nor can a corporation be made liable on a contract which the law prohibits it from entering into. It was said that in such cases the court will not lend its aid in the enforcement of rights growing out of a contract expressly forbidden by statute, but will leave the parties to the unlawful contract where it finds them.
So, too, In re Assignment Mutual Guaranty Fire Insurance Company, 107 Iowa 143, 70 Am. St. Rep. 149, the Supreme Court of Iowa held that where a mutual insurance company issues a policy which it is prohibited by law to issue, the policy is illegal and void, and the fact that premiums have been paid thereon and used by the company will not estop it from pleading ultra vires to a suit on the policy. Fraternal benefit societies do not have a capital stock, and are organized and carried on solely for the mutual benefit of their members. Our statute regulating such societies was manifestly enacted to protect the members, who are incapable of protecting themselves. It is well known that in such societies the officers make the rules and by-laws, and that the members have practically no voice in the management of the affairs of the. order. The Legislature having thus intended to restrict the age limit of the members of such societies for the purpose of protecting the members, the courts are bound to carry out the statute and to see that it is not violated. Otherwise the officers of such societies, by a course of conduct, could abrogate a statute and thus do indirectly what the statute prohibits them from doing directly.
But it is insisted that the defendant has failed to show that it was a fraternal benefit society within the meaning of the statute. We cannot agree with counsel in this contention. Sec. 6068 of Crawford & Moses’ Digest contains a definition of fraternal benefit societies. It provides that any corporation, society, etc., without capital stock, organized and carried on solely for the mutual benefit of its members and their beneficiaries, and having a lodge system with ritualistic form of work ¡and representative form of government, etc., is declaréd to be a fraternal benefit society.
Sec. 6069 provides that any society having a supreme governing body and subordinate lodges into which members shall be initiated and admitted, in accordance with its constitution, laws and prescribed ritualistic ceremonies, which subordinate lodges shall be required to hold regular meetings at least once in each month, shall be deemed to be operating under the lodge system.
It is fairly inferable from the benefit certificate sued on and from the testimony of the treasurer and the head officer of the local lodge that the defendant is a fraternal benefit society within the meaning of the statute. The benefit certificate recites that it was issued by the supreme lodge, and that Luke Jefferson was a member of the subordinate lodge at Arkadelphia. It also recites that his daughter is the beneficiary, and that the insured agrees to be governed by the constitution and by-laws of the supreme colony and to pay the local colony the requisite amounts to maintain membership in the society.
It is fairly inferable from the testimony of the officers of the local lodge that it had a ritualistic form of ' work. They testify that it was a secret order, and that it had regular meetings. It is also shown that the dues were paid monthly, and that part of the dues was kept by the local lodge and that a part of them was sent to the supreme governing body.
Therefore it is inferable from the evidence that the defendant is a fraternal benefit society within the meaning of the statute.
It follows from the views we have expressed that the court erred in not instructing the jury that, if it should find from the evidence that Luke Jefferson was over sixty years of age at the time he became a member of the order, it should find for the defendant.
Therefore the judgment will be reversed, and the cause remanded for a new trial. | [
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-50,
-123,
111,
20,
-95,
6,
-100,
103,
-24,
30,
8,
49,
25,
-24,
115,
-74,
6,
-12,
107,
-101,
-116,
98,
102,
-94,
121,
-63,
-104,
-120,
15,
54,
-99,
39,
-105,
57,
74,
37,
-73,
-33,
114,
20,
-90,
110,
-26,
20,
26,
108,
27,
-113,
-58,
-95,
-3,
112,
-68,
7,
-1,
-123,
48,
113,
-50,
98,
93,
113,
50,
-101,
-121,
-72
] |
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